IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

SANDRA LEE HAMBROOK, individually, as Personal Representative of the Estate of William Joseph Savage, deceased, and as Personal Representative for the benefit of Chelsea Savage and Nicolas Savage, Plaintiff, vs. JAY J. SMITH; DENNIS A. McCREA; HAWAIIAN SCUBA SHACK S-22840; PADI AMERICAS, INC. and PADI WORLDWIDE CORPORATION, both dba Professional Association of Diving Instructors, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civ. No. 14-00132 ACK-KJM

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

SYNOPSIS

This is an admiralty case brought by Plaintiff Sandra

Hambrook (“Hambrook”), individually, as Personal Representative

of the Estate of William Joseph Savage, deceased, and as

Personal Representative for the benefit of her children, Chelsea

Savage and Nicolas Savage, (“Plaintiff”), arising out of a

tragic diving accident resulting in the death of Hambrook’s

husband, William Joseph Savage (“Bill”). Plaintiff filed her

Hambrook v. Smith Doc. 365

Dockets.Justia.com

2

First Amended Complaint on April 7, 2015 against Defendants Jay

Smith (“Smith”), Dennis McCrea (“McCrea”), Hawaii Scuba Shack S-

22840 (“HSS”), PADI Worldwide Corporation and PADI Americas,

Inc., both dba Professional Association of Dive Instructors,

(collectively, “PADI”) (all, collectively “Defendants”).1 First

Am. Compl. (“FAC”), ECF No. 89. On June 2, 2015, the Court

granted PADI’s Motion for Partial Summary Judgment as to

Plaintiff’s count for negligence against PADI and as to two

vicarious liability claims raised against PADI. Order Granting

Defendant PADI’s Motion for Partial Summary Judgment and Denying

Plaintiff’s Counter-Motion for Partial Summary Judgment

(“Summary Judgment Order”), ECF No. 119. The claims remaining

in Plaintiff’s First Amended Complaint are (1) negligence as

against Smith, HSS, and McCrea; and (2) gross negligence against

all defendants.

On December 22, 2015 and December 23, 2015,

respectively, Defendant McCrea and Defendants Smith and HSS

filed counterclaims against Plaintiff Sandra Lee Hambrook,

1 Defendant PADI Americas, Inc. owns the trade name

Professional Association of Diving Instructors, and Defendant

PADI Worldwide Corporation is the parent company of PADI

Americas.

3

individually, for equitable subrogation, contribution, and or

indemnity. ECF Nos. 165-1, 166-1.2 3

On August 1, 2016, the Court issued its Order

Regarding Motions in Limine. ECF No. 364.

For the reasons set forth herein, the Court finds and

concludes that Smith/HSS was negligent with respect to the

creation and execution of the dive plan, failure to give an

adequate dive briefing, failure to use oxygen in conjunction

with CPR together with McCrea to resuscitate Bill, and failure

to have in place and implement an Emergency Action Plan. The

Court additionally finds and concludes that McCrea was negligent

in his failure to give an adequate dive briefing, failure to use

oxygen in conjunction with CPR together with Smith to

resuscitate Bill, and failure to inquire about emergency action

procedures. The Court finds that Bill was twenty percent

contributorily negligent insofar as he entered the overhead

environment at Skull Cavern contrary to instructions he did not

2 Defendant PADI also filed a counterclaim against

Hambrook, but voluntarily dismissed the claim. ECF No. 195.

3 For ease of reference, the Court will use the terms

“Plaintiff” and “Defendant(s)” and will not include the designations of “Counterclaim Defendant” and “Counterclaim Plaintiff(s)” when referring to the parties.

4

have the necessary training. Thus, for the reasons discussed

herein and set forth below, the Court finds that judgment in

favor of Plaintiff and jointly and severally against Smith, HSS,

and McCrea is appropriate in the total amount of $2,201,974.41,

as set forth in more detail in the Court’s Decision. Because

the Court finds and concludes that Hambrook was not

contributorily negligent, judgment in favor of Plaintiff is also

appropriate with respect to the remaining counterclaims.

Finally, the Court finds and concludes that Plaintiff failed to

prove her claims against PADI. Accordingly, judgment in favor

of PADI is appropriate for Plaintiff’s claims against PADI.

A 12-day bench trial was commenced on June 21, 2016,

and completed on July 8, 2016.4 Having heard and weighed all the

4 After Plaintiff rested her case on the ninth day of

trial, July 1, 2016, PADI made an oral motion for judgment on

partial findings pursuant to Federal Rule of Civil Procedure

52(c) as to Plaintiff’s claim against PADI for gross negligence. Smith and HSS also made an oral motion pursuant to Federal Rule

of Civil Procedure 52(c) for judgment on partial findings with

respect to Plaintiff’s claims for negligence and gross negligence. The Court heard argument on the motions and took

them under advisement. In view of the decision herein, the

motions are moot and denied.

The Court notes that Plaintiff sufficiently raised a

claim for negligent infliction of emotional distress damages in

the First Amended Complaint, which included allegations

regarding Hambrook, Chelsea, and Nicolas’s witnessing of the (continued . . . )

5

evidence and testimony adduced at trial, having observed the

demeanor of the witnesses and evaluated their credibility and

candor, having heard the arguments of counsel and considered the

memoranda submitted, and pursuant to Federal Rule of Civil

Procedure 52(a)(1), the Court makes the following findings of

fact and conclusions of law. Where appropriate, findings shall

operate as conclusions of law, and conclusions of law shall

operate as findings of fact.

( . . . continued)

circumstances leading to Bill’s death and alleged that all three had suffered emotional distress. See FAC ¶¶ 25-28, 31, 50.

6

Table of Contents

SYNOPSIS 1

FINDINGS OF FACT 8

I. The Parties 8

A. Plaintiff 8

B. Smith/HSS 8

C. McCrea 8

D. PADI 9

II. The Family’s Scuba Diving Training 10

III. Selection of Smith/HSS and April 10, 2012 Dives 13

IV. The Incident Dive – April 11, 2012 14

A. Selection of Dive Site 16

B. Assessment of Environmental Conditions 18

C. Dive Plan 20

D. Dive Briefing 25

E. Execution of Dive Plan 29

F. Recovery and Tow to Boat 41

G. Use of Oxygen, CPR, & Emergency Action Plan 46

V. Findings Related to Claims Against PADI 56

VI. Pain and Suffering, Witnessing the Incident, Family

Life, and Earning Capacity 59

CONCLUSIONS OF LAW 65

I. Jurisdiction and Venue 65

II. Applicable Law 67

III. Assumption of Risk, Waiver, and Releases 71

IV. Negligence Claims 83

V. Negligence Claims Against Smith/HSS 86

A. Selection of Dive Site 86

B. Assessment of Environmental Conditions 87

C. Dive Plan 88

D. Dive Briefing 89

E. Execution of Dive Plan 91

7

F. Recovery and Tow to Boat 92

G. Use of Oxygen, CPR, & Emergency Action Plan 94

H. HSS Liability 96

VI. Negligence Claims Against McCrea 96

A. Dive Briefing 96

B. Use of Oxygen, CPR, & Emergency Procedures 98

VII. Gross Negligence Claims Against Smith/HSS and

McCrea 100

VIII. Claims Against PADI 101

IX. Comparative Fault and Counterclaim 107

X. Damages 112

A. Pre-Death Pain and Suffering 112

B. Loss of Support 114

C. Loss of Services 117

D. Loss of Society 121

E. Emotional Distress 123

F. Hedonic Damages 125

G. Punitive Damages 127

H. Prejudgment Interest 128

XI. Calculation of Damages 130

XII. Joint and Several Liability 132

DECISION 133

8

FINDINGS OF FACT

I. The Parties

A. Plaintiff

1. Plaintiff Hambrook is a Canadian citizen from the city

of Calgary, in Alberta province. Hambrook Trial Tr. 8-59.

Hambrook and Bill were married in Canada on September 4, 1993.

Id. 8-66. Their daughter Chelsea was born in 1994 and their son

Nicolas was born in 1998. Id. 8-68. At the time of the

incident, Hambrook was 50, Bill was 49, Chelsea was 17, and

Nicolas was 13. Hambrook Trial Tr. 8-59, 8-68.

B. Smith/HSS

2. Smith is the owner and sole proprietor of Hawaiian

Scuba Shack, a scuba diving company in Kailua-Kona in Hawaii.

Smith Trial Tr. 1-59-61. Smith and HSS own an unnamed 28-foot

vessel that was used during the dive incident at issue. See id.

1-71. Smith became a certified diver in 1978, a PADI Open Water

Scuba Instructor in 1999, and a Master Scuba Diver

Trainer/Instructor in 2006. Id. 1-59-60. Prior to 2012, Smith

had trained approximately 300 divers. Id. 1-61. Smith obtained

a Coast Guard License in 1984 and he still holds the license.

Id.

C. McCrea

9

3. McCrea first became certified in open water scuba

diving in 1981 or 1982 through the National Association of

Underwater Instructors (“NAUI”). McCrea Trial Tr. 3-32. McCrea

received a rescue diver certification from NAUI in 1985 or 1986

and became a NAUI instructor in 1988. Id. 3-33. In 1990,

McCrea became a PADI certified Open Water Scuba Instructor. Id.

3-35; Ex. 269. He later became a PADI certified Master Scuba

Diver Trainer in 2005 and a certified Emergency First Responder

instructor in 2007. Id. 3-38-39; Ex. 267; Ex. 268.

D. PADI

4. PADI is a world leader in scuba diving training. PADI

teaches scuba diving training courses, provides certifications

for various different areas of scuba diving, and publishes

training manuals and other documents related to scuba diving.

PADI holds Member Forums for dive professionals in various

regions, including in Kona, to provide information about, among

other things, changes to standards. Hornsby Trial Tr. 8-40.

Emergency First Response Corporation (“EFR”) is a wholly owned

subsidiary of PADI Americas, Inc. Hornsby Trial Tr. 7-34, 7-41.

EFR provides first aid and CPR training to the public. Ex. 182

(Hornsby Dep. Tr. 51). EFR publishes a quarterly publication

called “The Responder” which includes updates to its member

10

instructors regarding dive standards as well as other

information.

II. The Family’s Scuba Diving Training 5. On the weekend of January 29-31, 2010, Bill, Hambrook,

and Nicolas received beginner’s recreational scuba diving

training in a classroom and pool in Calgary. Ex. 180 (Engel

Dep. Tr. 24-25); Hambrook Trial Tr. 8-78.

6. They were taught basic scuba skills in the PADI Open

Water Scuba Diver training course by PADI Instructor Ronald

Engel (“Engel”), including buoyancy control and regulator

recovery. Ex. 180 (Engel Dep. Tr. 16); Hambrook Trial Tr. 8-78-

79.

7. During the family’s training, they were provided with

PADI’s Open Water Dive Manual. Ex. 11. The manual instructs on

how to establish positive and negative buoyancy, how to maintain

neutral buoyancy, and how to use one’s Buoyancy Control Device

or Buoyancy Compensator Device (“BCD”) to float at the surface

of the ocean until assistance or rescue arrives in an emergency

situation. Ex. 11 (Open Water Diver Manual), at 13-14, 154-55.

8. Engel recommended that for future scuba diving, the

family should dive with PADI professional dive supervisors for

their safety. Hambrook Trial Tr. 80-81.

11

9. Engel’s recommendation accords with the PADI Open

Water Manual used by Engel in the family’s Calgary classroom and

pool training. Ex. 11 (Open Water Diver Manual), at 235

(recommending PADI Discover Local Diving orientation in a new

area).

10. PADI encourages its instructors to tell its Open Water

students to seek a local orientation when diving in a new area

after they become certified divers. Ex. 182 (Hornsby Dep. Tr.

102).

11. After the pool training, the PADI Open Water course

requires four training dives with a PADI Instructor in open

water outside of a swimming pool. Ex. 183 (DiBiasio Dep. Tr.

33-36).

12. In February 2010, on Maui, Bill, Hambrook, and Nicolas

completed their four open water training dives with the “Maui

Dreams” dive shop under the instruction of PADI Instructor Paul

DiBiasio (“DiBiasio”). Id. 33-36; Hambrook Trial Tr. 8-81.

13. Although there was indication in the family’s divelogs

that they experienced some waves and surge during these training

dives, both DiBiasio and Hambrook testified that the dives were

conducted in mild and calm ocean conditions without significant

12

waves or surge. Exs. 1-3; Hambrook Trial Tr. 8-81; Ex. 183

(DiBiasio Dep. Tr. 48-50, 63-66).

14. After completion of the four open water training

dives, DiBiasio certified Hambrook and Bill as PADI Open Water

Scuba Divers, and Nicolas as a PADI Junior Open Water Scuba

Diver. Ex. 411 (Maui Dreams Dive Company Business Records), at

5, 12, 25. A Junior Open Water certification is given to

children under 15 years old. Weber Trial Tr. 5-59. Junior

divers are restricted to diving at a maximum depth of 40 feet

and are required to dive with a certified PADI professional or a

parent. Id. 5-59-60. There are also restrictions regarding the

size of the dive group for junior divers. Id. 5-60.

15. Before leaving Maui, Bill, Hambrook, and Nicolas

booked a boat dive excursion with Maui Dreams in which Bill and

Hambrook participated in one scuba dive each as newly certified

divers, and Nicolas did two, diving with each of his parents

separately. Hambrook Trial Tr. 8-82. Both of the dives were

conducted in calm ocean conditions. Id.

16. In 2012, the family planned a vacation to Kona during

which Bill, Hambrook, and Nicolas hoped to scuba dive and

Chelsea hoped to snorkel. Hambrook Trial Tr. 8-82-83.

13

17. Because they had not done any diving since their 2010

Maui trip, before they left Calgary, they took a one-day PADI

“refresher” course recommended by Engel in their initial

training. Hambrook Trial Tr. 8-83.

III. Selection of Smith/HSS and April 10, 2012 Dives

18. Once they arrived in Kona, Bill and Hambrook looked

for a PADI dive shop where they could go scuba diving under the

supervision of a PADI professional and found Smith and HSS.

Hambrook Trial Tr. 8-84-86.

19. PADI standards required that all recreational diving

and snorkeling tours offered by HSS be supervised by a certified

PADI divemaster or Instructor. Ex. 182 (Hornsby Dep. Tr. 79-80).

20. Bill and Hambrook told Smith that they were new divers

with limited experience, informed him that their son Nicolas, 13

years old at the time, was certified only as a PADI Junior Open

Water Scuba Diver, and that they wanted easy, safe, and

supervised diving. Hambrook Trial Tr. 8-86.

21. Hambrook mentioned to Smith that she was interested in

seeing lava tubes under water. Hambrook Trial Tr. 8-86; Smith

Trial Tr. 1-92.

22. Bill and Hambrook signed boat travel and scuba

releases of liability and assumption of risk in favor of all

14

defendants for themselves and their children. Smith Trial Tr.

1-64; Exs. 208-211. This was the third time they had signed

similar releases and assumptions of risk. Hambrook Trial Tr. 9-

150-161. They previously signed them in favor of their Calgary

scuba instructors and again in favor of their Maui scuba

instructor in 2010 when they took their Open Water diver

courses. Id.; Ex. 224-226; Ex. 232.

23. Bill and Nicolas went on two dives with Smith on April

10, 2012. Hambrook Trial Tr. 9-163. Both dives were at the

Garden Eel cove in Kona, Hawaii. Smith Trial Tr. 1-66-67.

Their first dive was between 5:00 p.m. and 6:15 p.m. Id. 1-67.

The second dive was a night dive to observe Manta Rays under

water. Id. 1-76.

IV. The Incident Dive – April 11, 2012 24. The planned second day of diving was April 11, 2012.

Smith Trial Tr. 1-66. Bill, Hambrook, Nicolas, and Chelsea

boarded the HSS dive boat at Honokohau Harbor in Kona shortly

after 8:30 a.m. Hambrook Trial Tr. 8-88; Smith Trial Tr. 1-91-

92. Chelsea was aboard to spend time on the boat with her family

and snorkel. Chelsea Trial Tr. 5-186-187. On the day of the

incident dive, Bill was wearing his own fins, mask, and snorkel,

and was using the same BCD and regulator that had been provided

15

to him by Smith/HSS on April 10, 2012. Smith Trial Tr. 1-71, 1-

81. Bill’s scuba air tank was supplied by Smith. Id. 1-81.

25. Smith hired McCrea to assist on the day of the dive.

Ex. 179 (McCrea Dep. Tr. 27, 29). McCrea served as captain of

the vessel while Smith and the other divers were in the water,

as required by the United States Coast Guard, and his

responsibilities included assisting to load gear onto the boat,

helping Smith launch the boat, mooring the boat, and helping to

put the divers into the water. Id. 29. McCrea testified that

he was an independent contractor for Smith, but noted that while

serving as a captain on the vessel he was under Smith’s control.

Id. 27, 29-30. McCrea additionally agreed that while working

for Smith, he accepted the fact that Smith “would tell [him]

what to do.” Id. 30.

26. McCrea had only worked with Smith aboard the HSS dive

boat three to four times per year, over a three to four year

period. McCrea Trial Tr. 3-107.

27. Smith testified that he had not experienced a previous

scuba diving incident as a divemaster, dive guide, or boat

captain. Smith Trial Tr. 2-20. There was no evidence that

McCrea had experienced a prior incident related to scuba diving.

16

A. Selection of Dive Site

28. Smith chose a dive site called Suck ‘Em Up, Skull

Cavern, which was about a ten-minute boat ride North of

Honokohau Harbor. Smith Trial Tr. 1-92; 2-70. The State of

Hawaii establishes and maintains an underwater mooring ball

there for boats to use. Id. at 1-93-94.

29. The site’s name comes from two adjoining eroded lava

tube formations. Ex. 57 (DVD footage of site taken by Keller

Laros). Suck ‘Em Up is a longer, tubular formation, more

closely resembling a traditional lava tube. Id. The adjoining

formation, Skull Cavern or Skull Cave, is a generally circular

formation with two side-by-side vertical entrances facing

seaward. Id. The two entrances are also referred to as arches

or eyes, as they resemble the eyes of the skull, giving the

formation its name. At Skull Cavern, the top of the formation is

open in a large circular shape where the roof of the lava tube

collapsed, creating a large “skylight.” Ex. 90 (Laros sketch).

Although the dive site is sometimes generally referred to as

Suck ‘Em Up, this case involves the adjoining structure, Skull

Cavern.

17

30. Smith testified that he chose the dive site because

one of the divers asked to see lava tubes under water. Smith

Trial Tr. 1-92.

31. There was evidence presented that the dive site chosen

is generally appropriate for inexperienced certified divers. A

dive map of the area referred to as “Franko’s Dive Map” lists

“SUCK-EM-UP CAVERN” as a “[c]ave . . . good for beginners.” Ex.

221 (Franko’s Dive Map). Plaintiff’s expert testified that she

has previously taken inexperienced certified divers to the site

and Defendants’ expert testified that the site was commonly used

for beginners. Weber Trial Tr. 5-126; Gingo Trial Tr. 10-111-

112. Defense witness Keller Laros testified that the dive site

is very popular and at least two boats a day if not more use the

dive site. Laros Trial Tr. at 9-39.

32. Based on this evidence, the Court finds that the dive

site was commonly used by other dive professionals for

inexperienced certified divers and that it was reasonable for

Smith to conclude that the site was appropriate to the extent

the divers were going to be looking at but not entering the

arches at Skull Cavern, which would involve entering an overhead

environment. As discussed further below, Hambrook, Bill, and

18

Nicolas did not have training on diving in an overhead

environment, which PADI required.

B. Assessment of Environmental Conditions

33. There was ample testimony that when the boat reached

the dive site mooring the conditions were calm. On the way to

the dive site, Smith observed the wave sets “rolling in” and did

not see any waves exceeding two feet. Ex. 178 (Smith Dep. Tr.

243). Once they arrived at the dive site, Smith testified that

he stayed on the boat for at least ten minutes prior to the

start of the dive. Id. 242-43. During this time, McCrea jumped

in the water to moor the boat and assess the conditions. Id.

While McCrea was in the water, Smith was able to see if there

was movement in the water that affected the mooring line and

while watching McCrea swim back to the boat, Smith could see

whether McCrea was being moved by the ocean. Id. Smith could

also see the wave sets and “how stable the boat is without

rocking and bouncing.” Id. 243. When the divers entered the

water, Smith testified there were only one to two foot waves.

Id. 195. Once Smith entered the water for the dive, the

visibility under water was approximately 75 feet. Smith Trial

Tr. 2-22. Smith also noted that the weather conditions were

calm and the wind was very mild. Ex. 178 (Smith Dep. Tr. 179).

19

34. McCrea testified that when they arrived at the

mooring, Smith decided the conditions were fine and he

concurred. McCrea Trial Tr. 3-65. McCrea then entered the

water to moor the boat. At this point, McCrea noted that

visibility was clear, the mooring ball was sticking straight up—

indicating there were no conditions adverse to diving—and there

was no current. Id. 3-65-66. McCrea also testified that the

weather was clear and that there was no wind, rain, or clouds.

Id. 3-67. He observed waves coming in at the rocky shoreline at

the dive site and estimated that the waves were one to one-and-

a-half-feet and sometimes two to two-and-a-half-feet “but there

was nothing crashing anywhere on the shoreline.” Id. 3-112.

35. Nicolas testified that the conditions on the way to

the dive site were calm and nice and he did not recall any

swells in the ocean. Nicolas Trial Tr. 2-174. According to

Nicolas, no one expressed concern regarding the weather or ocean

conditions on the way to the dive site. Id.

36. Chelsea testified that when they arrived at the dive

site she noticed the water rising and falling and crashing over

the rocks. Chelsea Trial Tr. 5-131-132. However, she also

testified that she did not recall anyone commenting about the

ocean conditions on the way to the dive site or once they

20

arrived, and that the weather was clear and it was a sunny

morning. Chelsea Trial Tr. 6-93-94.

37. Based on this evidence, the Court finds that Smith

acted reasonably in assessing the dive conditions prior to

starting the dive. The testimony presented indicated that the

weather and ocean conditions were appropriate for diving and

Smith’s testimony that he assessed the conditions for several

minutes, with the assistance of McCrea, prior to starting the

dive was uncontroverted. Thus, the Court finds that Smith

appropriately conducted an assessment of the environmental

conditions prior to starting the incident dive.

C. Dive Plan

38. Throughout the proceedings, Defendants have maintained

the position that there was never any intent for the divers to

enter an overhead environment, such as the arches at Skull

Cavern. See, e.g., McCrea & PADI Proposed Findings of Fact,

Conclusions of Law and Order, at 7, 29, ECF No. 282-1 (proposing

findings and conclusions related to the dive not involving

entering an overhead environment); Smith Proposed Findings of

Fact, Conclusions of Law and Order, at 7, 32, ECF No. 286

(same); McCrea & PADI Post-Trial Proposed Findings of Fact,

Conclusions of Law and Order, at 8, 41, ECF No. 362 (same);

21

Smith and HSS Post-Trial Proposed Findings of Fact, Conclusions

of Law and Order, at 9, 10, 47, ECF No. 363-1 (same). However,

Smith testified during his deposition and at trial that he

planned to take the divers to the entrance of Skull Cavern,

settle near the bottom, assess the skill level and competency of

the divers and then based on the conditions decide whether or

not the divers should enter Skull Cavern. Ex. 178 (Smith Dep.

Tr. 228); Smith Trial Tr. 2-78. Smith repeatedly noted that the

dive plan included the possibility that the divers would enter

the archways at Skull Cavern.

39. Moreover, the Complaint and the First Amended

Complaint contained the allegation that McCrea informed the

divers that they would see two entrances to a cavern or archway

and “that they should go in the entrance on the right.” Compl.

¶ 18, ECF No. 1; FAC ¶ 17.

40. Hambrook testified that she anticipated the dive would

be a bottom dive and would not involve an overhead environment.

Hambrook Trial Tr. 9-165-66. She additionally testified that

prior to the dive, McCrea informed them that they would be

entering an arch that would open to a skylight, but that she did

not expect the arch would be an overhead environment. Id.

Nicolas testified that he was told prior to starting the dive

22

that they were going to be entering an opening that looked like

the eye of a skull. Nicolas Trial Tr. 2-120.

41. An overhead environment is generally defined as an

area where direct vertical access to the surface is not

possible. Ex. 182 (Hornsby Dep. Tr. 121). The vast majority of

the testimony indicated that the archways at Skull Cavern are

considered overhead environments, and the Court so finds based

on this evidence. Smith Trial Tr. 2-61; Weber Trial Tr. 5-64-

65; Laros Trial Tr. 9-46; Gingo Trial Tr. 10-203-204. PADI

representative Al Hornsby, who had never visited the site,

testified that “if access to the surface is available, even if

it’s at a slight angle, then you wouldn’t formally consider it

an overhead environment,” but acknowledged that determining

whether something is an overhead environment is “situational”

and would be a “hard call” in this instance. Hornsby Trial Tr.

8-45-46.

42. The Court notes that it finds problematic that

Defendants throughout the trial continued to insist that the

dive plan never included the possibility of entering an overhead

environment, although Smith clearly testified otherwise both

during his deposition and at trial and both the Complaint and

First Amended Complaint contained contradictory information.

23

43. According to Plaintiff’s expert Janet Weber, there are

specific hazards and risks involved with being “in shallow,

overhead areas,” which are encountered at Skull Cavern. Ex. 69

(Weber Report), at 6.

44. There was also testimony that diving in an overhead

environment requires specialized training. Defense diving

expert Glennon Gingo (“Gingo”), for example, testified that

overhead environments “require additional training to understand

how to dive in an overhead environment situation.” Gingo Trial

Tr. 10-197. Engel, who originally trained the divers in Canada,

similarly testified that divers who do not receive specialized

training for overhead environments are not qualified to dive in

an overhead environment. Ex. 180 (Engel Dep. Tr. 200).

45. The PADI Open Water Diver Manual also provides that

diving in overhead environments is inappropriate absent

specialized training. Ex. 11 (Open Water Diver Manual), at 139.

The Manual notes that training in open water diving prepares for

diving in open water but that once a diver loses the ability to

ascend directly to the surface the “risk and the potential

hazards go up dramatically.” Id. The Manual further warns that

one of the leading causes of death in scuba diving is going into

an overhead environment “without the proper training and

24

equipment.” Id. Gingo testified that it is appropriate for a

divemaster to follow PADI training. Gingo Trial Tr. 10-196.

46. There was also evidence presented that surge and wave

sets can sometimes make entering Skull Cavern dangerous even for

experienced divers. Ex. 69 (Weber Report), at 8. According to

Weber, Skull Cavern is set against the shoreline in shallow

water with an entrance at 20 feet, but the rear of the cavern

under the skylight is only 8 to 10 feet. Id. “The edge of the

skylight, or top of the cavern, is the rocky ledge of the

shoreline.” Id. The configuration of Skull Cavern, including

its location on the shoreline, allows for wave movement to

create surge. Weber Trial Tr. 5-21-22.

47. Hambrook, Nicolas, and Bill never received training

specific to overhead environments. They were all beginner PADI-

certified divers who had completed only between 5-8 dives each.

Nicolas was a junior diver requiring additional considerations

with regards to his safety. The divers informed Smith of their

limited training and diving experience so that Smith should have

been aware that they had not received training with respect to

overhead environments. Based on this evidence, including the

hazards associated with entering the arches at Skull Cavern, the

Court finds and concludes that Smith’s dive plan, insofar as it

25

included the possibility of taking the divers into the overhead

environment at Skull Cavern, was not reasonable under the

circumstances. The Court further finds that in this respect,

Smith enhanced the inherent risks and hazards associated with

the dive.

D. Dive Briefing

48. Before getting into the water, Hambrook testified that

she, Bill, and Nicolas were told by McCrea only that they were to

go down the mooring line, proceed toward shore following Smith,

that they should stay low in the water, and that they would then

“go through an archway on the right.” Hambrook Trial Tr. 8-89-

90, 9-118-120.

49. Nicolas testified that he was not sure who gave the

dive briefing, but the only information presented was that the

divers were going to swim around a rocky area near the shore, go

through an opening that looked like the eye of a skull, and that

they should avoid surface water and stay at depth. Nicolas

Trial Tr. 2-120, 2-173-74.

50. Chelsea testified that while her father was in

distress during the dive, she heard McCrea say something along

the lines of “I told them to stay away from the rocks.” Chelsea

Trial Tr. 5-132.

26

51. McCrea testified that he did not provide a dive

briefing regarding the hazards, overhead environment, or the

conditions, and he stated that it was not his job to provide

such warnings. McCrea Trial Tr. at 4-166-167. McCrea testified

that Smith was the one who gave the dive briefing, but admitted

that he had told Hambrook the name of the dive site. Ex. 179

(McCrea Dep. Tr. 104-05); McCrea Trial Tr. 4-166. According to

McCrea, prior to the dive he helped the divers get their

equipment on and checked to make sure that the divers knew how

to operate their BCDs. McCrea Trial Tr. 3-60-61. McCrea also

stated that he had no awareness regarding Bill, Hambrook, and

Nicolas’s dive experience level. Ex. 179 (McCrea Dep. Tr. 149).

52. Smith, in turn, testified that he gave a dive briefing

prior to the dive and that during the briefing, he informed the

divers to stay away from water movement, to stay low and

negatively buoyant, and he showed them how to use hand signals

as well as how to use their BCDs. Smith Trial Tr. 1-102-103.

Smith testified that he told the divers that if they saw white

water, which may look like champagne bubbles, they should not

swim towards it. Id. 1-103.

53. Smith admitted that he did not give a specific warning

about the waves and surge at the dive site, including the

27

possibility that there would be wave sets. Ex. 178 (Smith Dep.

Tr. 248-49). Smith admitted that “wave sets” are a foreseeable

occurrence in Hawaii and that the Kona Coast often experiences

wave sets. Smith Trial Tr. 2-77; Ex. 178 (Smith Dep. Tr. 249).

54. According to Plaintiff’s diving expert Weber, divers

at Skull Cavern should be warned about surge, given the

possibility of surge at the dive site. Weber Trial Tr. 5-62-63.

Weber testified that wave and surge action at the dive site are

foreseeable dangers that are well known to the Kona professional

diving community. Id. 5-37-38. Weber’s expert report also

noted that the divers should have been briefed regarding the

dangers “involved with being in shallow, overhead areas, and how

to minimize potential problems.” Ex. 69 (Weber Report), at 6.

55. Defendants’ diving expert Gingo admitted that if a dive

plan involved going through an overhead environment, a reasonably

prudent divemaster would warn of overhead environment entry and

advise about procedures to be used when entering an overhead

environment, such as Skull Cavern. Gingo Trial Tr. 10-201-203,

204-205. Gingo also testified that in this case there were no

warnings specifically related to an overhead environment. Id.

10-204-205.

28

56. With respect to the waves and surge, Gingo also

admitted that the divers were not given specific warnings about

the waves and surge at the site and that a reasonably prudent

divemaster would have explained the surge conditions at this

particular dive site. Id. 10-173-174, 10-196. Gingo noted that

the divers were warned about the possibility of champagne

bubbles, but testified that it is possible to have surge

conditions without champagne bubbles. Id. 10-173.

57. The Court finds that based on the evidence, both Smith

and McCrea provided dive briefings on the day of the incident

dive. The Court credits Hambrook’s testimony insofar as she

recalled that McCrea provided some information to the divers

prior to the dive. That McCrea provided a dive briefing was

further supported by Chelsea’s recollection that she heard

McCrea say “I told them to say away from the rocks” while her

father was in distress. Chelsea Trial Tr. 5-132. The Court

also credits Smith’s testimony that he provided a dive briefing

to the divers.

58. Based on the evidence adduced, the Court additionally

finds that both Smith and McCrea provided inadequate dive

briefings to Bill, Hambrook, and Nicolas. The dive briefings

should have included warnings about the hazardous conditions at

29

the dive site including the possibility of surge and waves at

the dive site and instruction on how to navigate through an

overhead environment. The Court further finds that all of the

foregoing hazards and dangers were known to Smith and McCrea.

59. The Court deems it reasonable to infer and therefore

finds that if Bill and Hambrook had been informed about the

dangers associated with the dive site by either Smith or McCrea,

they would have asked to go somewhere else without such dangers,

such as the two dive sites visited by Bill and Nicolas the day

before. This inference is supported by Hambrook’s testimony

that she informed Smith that the family wanted easy, safe, and

supervised diving. Hambrook Trial Tr. 8-86. The Court

additionally finds that the inadequate dive briefings

contributed to the chain of events leading to Bill’s fatality,

because he was unprepared to deal with the hazards he

encountered, as discussed further below. The Court further

finds that Smith and McCrea enhanced the inherent risks and

hazards associated with the dive through their failure to

provide adequate briefings.

E. Execution of Dive Plan

60. Given that Bill, Hambrook, and Nicolas were all three

newly certified divers, it was foreseeable and reasonable that

30

Smith would be required to provide close supervision during the

dive tour. Weber Trial Tr. 5-52. Weber testified that

providing close supervision means staying within ten feet of the

divers in order to be close enough to assist in the event of a

problem. Id. 5-59.

61. After entering the water, Bill, Hambrook, and Nicolas

descended together as a group along the mooring line. Hambrook

Trial Tr. 8-90. Smith had already gone ahead and did not

descend with Bill, Hambrook, and Nicolas. Id. Smith then met

the divers at the bottom, signaled them to follow and proceeded

to move off toward the shoreline. Id. Bill, Hambrook, and

Nicolas followed but Smith was “way[] ahead of [them].” Id.;

Hambrook Trial Tr. 9-127. Hambrook testified that Smith was

about 20 feet away from them at this time. Hambrook Trial Tr.

9-127.

62. The Court heard conflicting testimony about what

happened next. Smith testified in his deposition that he stopped

before entering Skull Cavern, looked back and saw Bill “drifting

upwards,” just as a set of five or more three to four foot waves

arrived, and that a wave carried Bill over him. Ex 178 (Smith

Dep. Tr. 227, 240, 261). According to Smith, at this time, Bill

31

was approximately 15 feet behind him. Id. 227. Smith testified

that neither he nor Bill ever entered Skull Cavern.

63. According to Nicolas, the divers started to head

towards the opening at Skull Cavern with Smith in the lead.

Nicolas Trial Tr. 2-121. As they approached Skull Cavern,

Nicolas testified that he did not believe there were any

communications between the divers. Id. At this point, Nicolas

witnessed Smith enter Skull Cavern, followed by his father, and

as he followed them toward the opening, the water suddenly “felt

like it was pulling [him] into the opening.” Id. 2-122.

64. According to Nicolas, after he lost sight of Smith, he

could still see his father inside Skull Cavern and his father

appeared to be “[s]wimming forwards and upwards.” Id. 125. The

evidence presented regarding the interior topography of Skull

Cavern uniformly described an upward slope when moving from the

entrance toward the back under the skylight. Weber Trial Tr. 5-

21; Laros Trial Tr. 9-58-59; Gingo Trial Tr. 10-171.

65. After he lost sight of his father, Nicolas was swept

by the water to the entrance of Skull Cavern and had to push off

the rock formations there. Nicolas Trial Tr. 2-126-127.

Nicolas testified that the water then changed directions and

started pushing him out away from the opening. Id. 2-127. At

32

this point, he decided he was uncomfortable with the conditions

and began to return to the mooring line. Id. It took 13-year-

old Nicolas approximately one minute or less to reach the

mooring line. Id. 2-128. According to McCrea’s drawn map of

the incident, the entrance of Skull Cavern was approximately

eighty feet from the boat. Ex. 331A (McCrea Map).

66. Hambrook testified that shortly into the dive she was

pushed by the force of the water and jostled and bounced to the

bottom of the ocean, actually hitting the bottom. Hambrook

Trial Tr. 8-91. Once she gained control, she noticed Bill

drifting or washing away to her left. Id. Hambrook waved for

Bill to come back. Id. 8-92. At that moment, she also saw

Smith at or in one of the archway entrances to Skull Cavern.

Id. 8-91. Hambrook saw Nicolas turn and head back and she

followed him. Id. 8-92. Hambrook testified that it took her

approximately 30 to 40 seconds to return to the mooring line.

Hambrook Trial Tr. 9-171-172.

67. Smith testified that he noticed Hambrook and Nicolas

swimming back towards the boat and that at this time they were

“not more than 20 feet away” from him. Smith Trial Tr. 2-16.

68. On the boat, in the same timeframe described by

Nicolas and Hambrook, Chelsea saw Bill on the rocks above Skull

33

Cavern, confused and disoriented, but with his mask on and

regulator in his mouth. Chelsea Trial Tr. 5-132. Directly

behind Bill was a “hole” that Chelsea was afraid he might fall

into. Id.

69. McCrea testified that he saw Bill twice at the surface

of the water. The first time, McCrea saw Bill come to the

surface and let air out of his BCD. McCrea Trial Tr. 4-136.

Bill appeared to be in control at this time and descended back

under water. Id. Seconds later, McCrea saw Bill surface again,

this time without his regulator in his mouth “thrashing about”

and looking panicked. Id. 4-105; Ex. 179 (McCrea Dep. Tr. 111-

12).

70. Chelsea, McCrea, and Smith observed Bill calling for

help. Chelsea Trial Tr. 5-134-135; Ex. 179 (McCrea Dep. Tr.

158); Ex. 178 (Smith Dep. Tr. 261).

71. McCrea testified that Bill had his mask on the second

time he saw him at the surface and Smith testified Bill had has

mask on when he heard him call for help. Ex. 179 (McCrea Dep.

Tr. 114); Ex. 178 (Smith Dep. Tr. 260). Chelsea testified that

the last time she saw her father on the rocks he did not have

“the regulator” or his “mask on his face.” Chelsea Trial Tr. 5-

135.

34

72. The Court heard testimony that the wave action at

Skull Cavern can cause a diver to be pushed to the surface of

the ocean. Smith admitted that under certain conditions it

would be possible for the hydraulic action at Skull Cavern to

push someone to the surface. Smith Trial Tr. at 2-100. Laros

testified that when the waves are high, it is possible for

someone in Skull Cavern to get popped out to the top. Laros

Trial Tr. 9-58. Weber similarly testified that surge around

Skull Cavern can cause divers to be “shot up.” Weber Trial Tr.

5-37.

73. The Hawaii Police Report for the subject incident

contained a statement attributed to Smith, based on a police

interview of Smith conducted the same day as the incident,

stating, “SMITH related that a current surge suddenly swirled in

the area and [Bill] went to the surface.” Trial Tr. 2-57; Ex.

125 (Hawaii Police Department Records), at 23.

74. Laros confirmed and the Court observed that video

footage taken by Laros less than an hour after the subject

incident at the dive site showed some surge. Laros Trial Tr. 9-

64-65; Ex. 57 (Laros DVD).

75. Defendants maintain that Bill lost buoyancy control,

causing him to rise to the surface. However, Smith did not

35

mention the loss of buoyancy control in his statement to the

Hawaii Police, in his written statement submitted to the United

States Coast Guard on the day of the incident, or in the PADI

Incident Report submitted by Smith to PADI six days after the

incident. Smith Trial Tr. 2-59, 2-64; Ex. 6 (Coast Guard

Statement dated April 11, 2012); Ex. 103 (Smith PADI Incident

Report), at 1; Ex. 125 (Hawaii Police Department Records), at

23.

76. After observing the demeanor and assessing the details

of the testimony presented as well as all the evidence, the

Court credits Nicolas’s testimony and finds that Smith led Bill

into Skull Cavern, just as a set of waves creating a strong

surge arrived. The Court notes that Hambrook testified that she

did not observe Bill enter the arch at Skull Cavern. Hambrook

Trial Tr. 9-106. However, it is reasonable to infer that at the

time Bill entered Skull Cavern, as observed by Nicolas, Hambrook

was experiencing the surge conditions that led her to be bounced

to the bottom of the ocean, preventing her from seeing Bill at

this time.

77. The Court finds that based on Nicolas’s and Hambrook’s

testimony, Smith swam ahead of the divers failing to stay

sufficiently close to the divers to provide adequate

36

supervision. Hambrook Trial Tr. 8-90, 9-127; Nicolas Trial Tr.

2-121-125. This was particularly problematic given that Nicolas

was a junior diver. Smith also failed to assess the conditions

under water prior to entering Skull Cavern. In this respect,

the Court credits Nicolas’s testimony describing the sequence of

events as the divers approached Skull Cavern and Bill and Smith

went through the arches at the cavern, including his testimony

that there were no communications during the approach. Nicolas

Trial Tr. 2-122-125. These findings are also supported by

Weber’s expert report in which she noted that Smith erred by

“not stopping, checking on the group, in addition to

assessing/monitoring the environmental conditions.” Ex. 69

(Weber Report) at 9. The Court finds that because Smith was too

far ahead of Bill, he was unable to stop Bill from being swept

to the surface of the water.

78. The Court heard testimony on how a diver may be swept

upward by the force of the hydraulic surge action in and around

Skull Cavern, causing him or her to abruptly reach the surface

of the water. The Court finds that it can be reasonably

inferred, based on all the evidence adduced, that after he

entered Skull Cavern following Smith, Bill was swept upward by

the surge to the surface of the water through the structure’s

37

open skylight, washing him onto the shallow rocks just above, as

observed by his daughter Chelsea.

79. An alternative reasonable inference based on the

evidence adduced is that after he entered Skull Cavern following

Smith, Bill was swept back out of the cavern through one of the

two arches with the receding surge of the first wave, placing

him in the position described by Smith in his testimony outside

the cavern entrance. This would have occurred just before Bill

was swept shoreward over Smith, who was then looking for Bill,

into the shallow rocky area, by the next wave of the set.

80. The Court finds that it is unnecessary to determine

which of these two reasonable inferences is more accurate. In

either case, the Court finds that Bill was swept upward without

warning to the surface by the wave and surge action, and not as

a consequence of his having failed to operate his BCD properly,

as Defendants allege. The Court finds it significant that

Smith’s reports that were made right after the event said

nothing about a loss of buoyancy and that McCrea believed Bill

was in control of his BCD and his buoyancy when he ascended to

the surface the first time and then proceeded to descend.

Relatedly, the Court notes that the likely explanation for Bill

reaching the surface a second time, after McCrea saw him for the

38

first time at the surface and in control of his BCD, was as a

result of the wave and surge action he experienced.5

81. Defendants point to Weber’s testimony that Bill lost

neutral buoyancy and surfaced. Weber Trial Tr. 5-90.

Obviously, when Bill was swept to the surface of the water, he

lost neutral buoyancy. However, as noted above, the Court finds

that the cause of Bill reaching the surface was the wave and

surge action, and not his inability to maintain buoyancy, as

Weber also testified. Id. 5-118 (noting that the waves and not

buoyancy issues caused the problem).

82. Based on all the evidence adduced, the Court finds it

reasonable to infer that when Hambrook saw Bill being swept or

5 During Closing Arguments, Smith and HSS argued that

Plaintiff admitted in her Answer to their Counterclaim that Bill

had issues with his buoyancy control. Trial Tr. 12-16-17. In

the Counterclaim, Smith and HSS alleged that, “Upon information and belief, around the same time [that Hambrook and Nicolas

headed back to the boat] Mr. Savage experienced difficulties

maintaining neutral buoyancy underwater.” Counterclaim ¶ 12, ECF No. 166-1. In her Answer, Plaintiff admitted that Bill “was led by Smith into an area of wave action, surge, and current,

and that he experienced difficulties that may have included

buoyancy issues.” Answer to Counterclaim ¶ 6, ECF No. 167. The Court notes that Plaintiff’s answer can be interpreted in different ways, including that Bill had buoyancy problems

related to the surge and the waves that he experienced, which

caused him to be swept to the surface.

39

washed away, and her son swimming back to the boat, it was after

the first wave of the set had passed.

83. The Court reiterates that there is a conflict in the

testimony regarding the events that occurred with respect to the

execution of the dive plan, including the supervision of the

dive. The Court credits Hambrook and Nicolas’s testimony over

Smith’s testimony, as discussed above.

84. The Court further finds that the danger created by the

waves and surge on and around Skull Cavern as well as the change

in depth associated with the cave, and the overhead environment,

present greater risks than the inherent risks typically

encountered in scuba diving, about which Bill, Hambrook, and

Nicolas were given inadequate warnings.

85. Based on the evidence adduced, the Court additionally

finds that Smith acted unreasonably in the execution of the dive

plan, including his failure to adequately supervise the dive and

his failure to assess the conditions at Skull Cavern prior to

entering the arch. Smith also led Bill into Skull Cavern, which

included an overhead environment and the presence of surge,

although Bill did not have training for diving in an overhead

environment.

40

86. The Court additionally finds that in this respect,

Smith enhanced the inherent risks and hazards associated with

the dive. The Court further finds that Smith’s failure in this

regard led to the circumstances which eventually resulted in

Bill’s death.

87. The Court additionally finds that Bill acted

unreasonably under the circumstances insofar as he followed

Smith into the arch at Skull Cavern. As noted above, while

Bill, Hambrook, and Nicolas were PADI-certified divers, they had

not received training regarding overhead environments.

Specifically, the Open Water Diving Manual provided to Bill

noted that overhead environments should be avoided unless

specific training is received. Ex. 11 (Open Water Diver

Manual), at 139. Engel additionally testified that he taught

Bill, Hambrook, and Nicolas the information in the Open Water

Diving Manual regarding the hazards of an overhead environment.

Ex. 180 (Engel Dep. Tr. 200).

88. Moreover, as part of Bill, Hambrook, and Nicolas’s

PADI training, they signed a PADI “Standard Safe Diving

Practices Statement of Understanding,” in which they agreed to:

“Engage only in diving activities consistent with my training

and experience. Do not engage in cave or technical diving

41

unless specifically trained to do so.” Ex. 232 (Maui Dive

Company Records), at 9, 17, 30; Hambrook Trial Tr. 9-90-92.

89. Nicolas testified that the divers were informed prior

to the dive that they would be entering an opening that looked

like the eye of a skull and Hambrook testified that they were

informed they would be entering an archway. Hambrook Trial Tr.

8-90, Nicolas Trial Tr. 2-120. The Court has credited Nicolas’s

testimony that Bill in fact did enter the archway, following

Smith through the entry of Skull Cavern.

90. Given the contrary instructions Bill received, the

Statement of Understanding he signed, and the information

provided prior to the dive, he should have realized that

entering the overhead environment at Skull Cavern could be

dangerous and he should have considered that he was not trained

to safely enter the cavern. The Court finds that Bill’s

negligent actions in this regard contributed to the

circumstances resulting in his death.

F. Recovery and Tow to Boat

91. After Bill was carried over him, Smith surfaced to try

to help him. He saw Bill on the surface in the whitewater

caused by the waves, approximately 20 feet away, and he heard

Bill yell “help me”. Smith Trial Tr. 1-113; Ex. 178 (Smith Dep.

42

Tr. 261). Making a “bee line” to get to him as fast as

possible, Smith swam to Bill and found him on the bottom at a

depth of 12-15 feet. Ex. 178 (Smith Dep. Tr. 259). He had no

mask on his face, and he did not have his scuba regulator in his

mouth. Id. Smith estimated Bill was under water for about one

minute before he reached him. Id. 266. Smith brought him to

the surface, taking about 5 seconds to do so. Id. 267. At the

surface, Smith saw that Bill’s color was normal, and checking for

breathing, Smith thought he “felt an exhalation.” Id. 268, 269.

92. The boat was about fifty feet away from where Bill

surfaced with Smith, according to McCrea’s drawn map of the

incident. Ex. 331A (McCrea Map). Smith testified that he towed

Bill to the boat as fast as possible and estimated that it took

one minute or less to do so. Ex. 178 (Smith Dep. Tr. 270-71).

He estimated that it took him just a few more seconds to get

Bill onto the swimstep of the boat with McCrea’s assistance.

Id. at 273-74. Nicolas testified that it took him about one

minute to swim the eighty feet back to the mooring line from the

entrance of Skull Cavern and Hambrook testified that it took her

about 30 or 40 seconds to return to the mooring line after

experiencing the surge. Nicolas Trial Tr. 2-128; Ex. 331A

(McCrea Map); Hambrook Trial Tr. 9-171-172. Smith did not

43

provide rescue breaths while towing Bill back to the boat. Id.

270.

93. The Court heard conflicting evidence on the elapsed

time in which Bill was under water, brought to the surface, to

the vessel, and then aboard the vessel. McCrea testified that

the elapsed time for each of these segments was longer than Smith

estimated. McCrea’s testimony on these points is directly

contradicted by the handwritten PADI Incident Report that he

prepared one day after this incident, in which he wrote, “Time

elapsed from last sighting of victim until on board approx 4

minutes.” Ex. 18 (McCrea PADI Incident Report), at 4. In his

deposition, McCrea testified that from the time Smith surfaced

with Bill until he got Bill to the boat, about a minute to a

minute and a half elapsed. Ex. 179 (McCrea Dep. Tr. 132, 223-

24). McCrea also acknowledged that given the lapse of three

years, what he wrote in his contemporaneous PADI Incident Report

was more accurate than his present recollection. Id. 158-59.

94. Having assessed the demeanor of the witnesses, the

Court credits Smith’s estimates, which establish that Bill was

under water without his scuba regulator in his mouth for

approximately one minute. Further, that after Smith reached

Bill, Smith brought him to the surface immediately (in

44

approximately 5 seconds), towed him to the boat in approximately

one minute and then Smith and McCrea brought Bill aboard the boat

immediately, in a matter of just a few more seconds.

95. In sum, based on all the evidence adduced, the Court

finds that a total time of approximately two to two-and-a-half-

minutes elapsed from the time Bill was submerged unresponsive

until he was actually brought aboard the boat by Smith and

McCrea.

96. The Court notes that the vessel logs and dive

equipment, including a dive computer—which would have included

information regarding the timing of the dive—were somehow

missing.

97. In 2012, the Diving Committee of the Undersea and

Hyperbaric Medical Society (“UHMS”) published an article titled

Recommendations for Rescue of a Submerged Unresponsive

Compressed-gas Diver in which the authors “reviewed available

evidence in relation to medical aspects of rescuing a submerged

unresponsive compressed-gas diver.” Ex. 59, at 1099. Both

Plaintiff and Defendants’ medical experts discussed this article

in their testimony. The article refers to the “methods

recommended” in the PADI Rescue Diver Manual as a “basis for

discussion.” Id. at 1100.

45

98. According to the article, “[t]here is ongoing debate

over the optimal approach to rescue of an unresponsive diver

from depth.” Id. Because “[t]here is paucity of related

research” the authors note that “any recommendations on rescue

technique will defer largely to ‘expert opinion.’” Id. The

article provides several additional cautions with respect to its

recommendations, including the following:

First, any diver who becomes unresponsive

underwater is in a perilous situation. All

divers must understand that even a textbook

rescue will frequently not achieve a good

outcome. Interpretations of accidents and any

commentary on the outcome of attempted rescues

should therefore be made with great caution.

Second, there are many contextual issues that

could influence the correct course of action in

any particular situation. Although best

evidence, logic and experience have been applied

in answering the questions posed in the previous

section, it is not claimed that these answers

will invariably be correct in all situations.

Id. at 1101-1102.

99. The authors determined that effective rescue breaths

can be completed in the water, but noted that the “‘breathe or

remove from water decision’ is very context sensitive, so the

committee is reluctant to recommend directive ‘rules’ around

these situations.” Id. at 1107.

100. The committee stated that:

46

Its view on the matter is best summed up by the

following statement: “Even when surfacing immediately adjacent to surface support, a

trained rescuer should consider positioning the

victim on the back, establishing positive

buoyancy, opening the airway, and delivering two

rescue breaths before initiating attempts to

remove the victim from the water. However, these

steps can be set aside if circumstances suggest

that removal of the victim from the water can be

expedited in less than one minute.”

Id.

101. Based on the evidence adduced, the Court finds that it

was reasonable for Smith to tow Bill as quickly as possible to

the boat, given the proximity to the boat, and to forego rescue

breaths. As stated in the UHMS article, if removal from the

water is possible in less than one minute, the rescue diver may

proceed to tow the victim to the boat where CPR can be

initiated.

G. Use of Oxygen, CPR, & Emergency Action Plan

102. Smith testified that he and McCrea got Bill aboard the

stern of the boat immediately, in a matter of just a few more

seconds, there were another few seconds to move gear, and that

McCrea began CPR as Smith started the engine, unmoored the boat,

called 911, and piloted the boat to the harbor. Ex. 178 (Smith

Dep. Tr. 274-75).

47

103. There was testimony presented that Bill’s face was of

a purplish color at this time. McCrea Trial Tr. 3-80; Chelsea

Trial Tr. 5-145, 6-77; Hambrook Trial Tr. 8-97.

104. McCrea testified that as soon as all of the divers got

back on board the vessel, he administered thirty chest

compressions, then two rescue breaths, or mouth-to-mouth

ventilations to Bill. McCrea Trial Tr. 3-81; Ex. 179 (McCrea

Dep. Tr. 124, 171). He then continued CPR with 30 chest

compressions and two breaths, providing both until they reached

the mouth of the harbor at which point he continued with chest

compressions only. McCrea Trial Tr. 3-89. McCrea estimated

that it took between eight to ten minutes to return to the

harbor. Id. 3-90.

105. McCrea testified that he determined based on his

training that Bill had no pulse, however he also testified that

he did not check for a pulse. McCrea Trial Tr. 3-89, 4-117.

There was no evidence that Smith checked Bill’s pulse.

106. Hambrook testified that McCrea only provided one or

two rescue breaths to Bill and then performed only chest

compressions. Hambrook Trial Tr. 8-98-99.

107. The Hawaii Police Report for the subject incident

included a written account of the information provided by

48

Hambrook to the police and noted that, “The cardiopulmonary

resuscitation continued for approximately ten minutes as the

boat, driven by [Smith], headed back toward the coast of

Honokohau Harbor.” Ex. 125 (Hawaii Police Department Records),

at 20-21.

108. After observing the demeanor and assessing the details

of the testimony presented as well as all the evidence, the

Court credits McCrea’s testimony that he provided rescue breaths

along with chest compressions up until reaching the mouth of the

harbor.

109. PADI required that HSS have an oxygen unit available at

any diving activity conducted by HSS. Ex. 182 (Hornsby Dep. Tr.

93). The United States Coast Guard did not require oxygen to be

on board this type of vessel. McCrea Trial Tr. 3-105.

110. Smith testified that he has three different oxygen

tanks and two different oxygen masks available on his boat. Ex.

178 (Smith Dep. Tr. 279).

111. Plaintiff’s medical expert, Dr. Paul Cianci noted in

his expert report that although there was a pocket rescue mask

available on the boat, it was not utilized, even though it

“would have aided greatly in the administration of rescue

breaths and oxygen.” Ex. 76 (Cianci Report), at 3. According

49

to Dr. Cianci, the use of the oxygen along with the pocket mask

denied Bill a “vital element needed for survival.” Id. at 2-3.

Dr. Cianci noted that “no additional assistance was rendered to

Mr. McCrea, and he alone provided CPR.” Id. at 2. He also

stated that the administration of oxygen was a PADI

recommendation and medically indicated and that “[d]espite Mr.

McCrea’s training, he failed to utilize this critical

resuscitative measure.” Id. at 3. At trial, Dr. Cianci

testified that the use of “oxygen adds a whole order of

magnitude of . . . oxygen available to the red cells to pick it

up.” Cianci Trial Tr. 4-72.

112. Weber also testified regarding the importance of

oxygen during the rescue situation at issue, noting that oxygen

is appropriate in cases of resuscitation and “is almost always

beneficial in a diving accident.” Weber Trial Tr. 5-70. Weber

also noted that rescue divers are trained on the use of oxygen

during such incidents and stated that Smith and McCrea failed to

provide “lifesaving oxygen” to Bill. Id. 5-70-74; Ex. 70 (Weber

Supplemental Report), at 5. According to Weber, oxygen should

have been used in this case, and McCrea should have gotten the

oxygen ready to use once Bill surfaced and was being towed back

to the boat by Smith. Ex. 70 (Weber Supplemental Report), at 5.

50

Weber also noted that Smith left McCrea to “manage the accident

scene” and “made no attempt to bring out the oxygen kit, nor

direct someone else to retrieve it and make [it] available to

[McCrea].” Id.

113. The PADI Rescue Diver Manual provides that

administration of oxygen is “one of the single most important

first aid steps for a diver suspected of suffering from . . .

near drowning.” Ex. 92 (PADI Rescue Diver Manual), at 29.

114. Despite the presence of oxygen on the boat and the

importance of oxygen in near-drowning cases, it is undisputed and

the Court therefore finds that Smith and McCrea did not provide

rescue breaths to Bill with breathing oxygen carried aboard the

HSS dive boat in accord with PADI Rescue Diver guidelines.

115. The Court further finds that given Bill’s urgent need

for oxygen therapy upon his recovery aboard the boat, Smith and

McCrea should have immediately worked together to administer the

oxygen and deliver chest compressions, before leaving Bill with

one of them alone, leaving the mooring, and calling 911. See Ex.

151 (The Responder), at PADI 001548 (“When rescuing a drowning

victim of any age, it is reasonable for the lone healthcare

provider to provide five cycles (about two minutes) of CPR before

leaving the victim to activate the EMS system.”); Ex. 92 (PADI

51

Rescue Diver Manual), at 39 (“If you have enough qualified Rescue

Divers available, it’s usually more effective for two rescuers to

go to the victim’s assistance.”); Ex. 92 (PADI Rescue Diver

Manual), at 185 (“Have someone open the [oxygen] kit while you

continue rescue breaths and attach the oxygen tube from the

continuous flow outlet to the pocket mask . . . . Don’t let

this interfere with rescue breathing or CPR procedures.”). On

this basis, the Court rejects McCrea’s justifications for not

using the oxygen, i.e., because he could not administer the

oxygen on the swim step alone while the boat was headed back to

the harbor and because he claimed the oxygen could create a fire

hazard given its proximity to the engine compartment. See

McCrea Trial Tr. 3-94, 3-99.

116. Based on the evidence adduced, the Court finds that

Smith and McCrea’s failure to administer CPR with oxygen was

unreasonable under the circumstances and contributed to Bill’s

fatality, as discussed further below. The Court additionally

finds that Smith and McCrea enhanced the inherent risks and

hazards associated with the dive in this respect.

117. Relatedly, it is undisputed and the Court therefore

finds that Smith did not have an Emergency Action Plan in place

to provide for the foreseeable occurrence of a near-drowning

52

emergency such as in this case. Ex. 178 (Smith Dep. Tr. 276-

77); Ex. 179 (McCrea Dep. Tr. 258-59). Smith and McCrea had not

practiced or discussed procedures for such emergencies. Ex. 179

(McCrea Dep. Tr. 259).

118. McCrea testified that he knew that oxygen was normally

available on the boat but he did not physically look for the

oxygen so he was not sure it was on the boat on the day of the

incident. Id. 99. According to McCrea, he was aware of where

the oxygen should have been kept, but on the day of the incident

he made no attempt to see if the oxygen was actually present on

board. Id. 136. Smith testified that on the day of the

incident he never suggested to McCrea that oxygen was on board

or that oxygen should be administered. Ex. 178 (Smith Dep. Tr.

328). The Court finds that McCrea should have inquired of

Smith, prior to the vessel leaving on the dive trip, about

emergency plan procedures; particularly since in accordance with

the United States Coast Guard requirements, he would be serving

as the captain of the vessel while Smith was leading the dive.

119. Weber testified that not having an Emergency Action

Plan in place and not having practiced emergency procedures,

including gaining familiarity with where the oxygen is located

on a vessel, is inappropriate. Weber Trial Tr. 5-74. Gingo

53

testified that an Emergency Action Plan would at the least

include the location of oxygen as well as the procedure to be

used. Gingo Trial Tr. 10-193-194.

120. Weber also noted that Smith and McCrea failed to

provide a boat safety briefing, which would have provided

information to the passengers regarding the location of the

oxygen and first aid kit on board as well as the location of any

flotation devices. Ex. 70 (Weber Supplemental Report), at 4.

121. Based on the evidence adduced, the Court finds that

Smith’s failure to have in place and follow an Emergency Action

Plan and McCrea’s failure to inquire about emergency procedures

were unreasonable. The lack of a plan and the failure to

discuss and practice emergency procedures left both Smith and

McCrea unprepared with how to appropriately handle Bill’s

resuscitation, particularly because McCrea was not clear as to

the location of the oxygen on the boat nor where the oxygen

could be safely utilized. The Court additionally finds that in

this respect, Smith and McCrea enhanced the inherent risks and

hazards associated with the dive.

122. Once the boat arrived at the boat harbor, Hawaii

Emergency Medical Services (“EMS”) was waiting and took over

Bill’s resuscitation and care. Smith Trial Tr. 2-19-20; Ex. 124

54

(Emergency Medical Services Records). Hambrook rode in the

ambulance transporting Bill to Kona Hospital, where he was

pronounced dead. Hambrook Trial Tr. 8-100-101.

123. After autopsy, the Coroner’s Inquest for the State of

Hawaii, County of Hawaii, determined the cause of Bill’s death

was salt water drowning. Ex. 125 (Hawaii Police Department

Records), at 10. The Court heard testimony from the parties’

medical experts, who were also of the opinion that the cause of

death was drowning, Cianci Trial Tr. 4-20-22; Weaver Trial Tr.

6-12 (“aspirated sea water”), and the Court so finds, based on

all the evidence.

124. Dr. Cianci and Defendants’ medical expert, Dr. Lindell

Weaver, agree that there is a window of survivability after

cessation of breathing that lasts a matter of minutes in near-

drowning incidents, such as this case. Cianci Trial Tr. 4-20-22

(five minutes); Weaver Trial Tr. 6-48 (two to three minutes).

125. While Dr. Cianci and Dr. Weaver have a high respect

for one another, Dr. Cianci pointed out that Dr. Weaver’s

opinion was erroneously based on the conclusion that it took

between “7.5 to 11 minutes” from the time Smith sank under water

to the commencement of CPR. Ex. 77 (Cianci Rebuttal Report), at

1; see also Ex. 241 (Weaver Report), at 5 (noting time range of

55

“7.5 to 11 minutes”). Dr. Cianci concluded that Bill would have

survived the incident if appropriate resuscitative measures had

been taken. Cianci Trial Tr. at 4-12. Dr. Weaver opined that,

based on McCrea’s testimony regarding the length of time it took

for Bill to be retrieved from the ocean floor, he had already

undergone cardiac arrest and rescue breaths and the

administration of oxygen would have made no difference in his

resuscitation. Weaver Trial Tr. 6-13-14, 6-20. Dr. Cianci

disagreed with Dr. Weaver’s conclusion that Bill had already

gone into cardiac arrest. He also explained that where cardiac

arrest is due to drowning, the problem is that the heart has

been “starved of oxygen.” Cianci Trial Tr. 4-73. In these

cases, oxygen “may provide the vital substrate for the heart to

begin beating on its own or be in a more effective rhythm” and

that when the “heart is in dire straits, providing oxygen will

correct that situation.” Id.

126. Based on the testimony of Smith regarding the elapsed

times and the testimony of Dr. Cianci and Dr. Weaver, the Court

finds that if proper resuscitation procedures had been followed

by Smith and McCrea, specifically the administration of CPR with

oxygen once Bill had reached the boat, it is more probable than

not that Bill would have survived. Both Dr. Cianci and Dr.

56

Weaver agreed that a period of survivability for near-drowning

victims lasts between two to five minutes. Here, the Court

finds Bill was under water, recovered by Smith, and towed back

to the boat in a period of approximately two to two-and-a-half-

minutes, within the periods of survivability described by both

experts. Moreover, the Court heard testimony on the critical

importance of oxygen administration for near-drowning victims.

V. Findings Related to Claims Against PADI

127. At the Pretrial Conference, Plaintiff stipulated that

she had one narrow claim against PADI, i.e., that PADI was

grossly negligent in following EFR’s difference on compressions

procedures in 2011. Pretrial Tr. Conf. 90-91.

128. As noted above, EFR is a wholly owned subsidiary of

PADI Americas, Inc. Hornsby Trial Tr. 7-34, 7-41. EFR provides

first aid and CPR training to the public, including both the

diving and nondiving community. Ex. 182 (Hornsby Dep. Tr. 51).

PADI Americas owns the copyright to PADI manuals and produces

them, while EFR owns the copyrights to its EFR manuals. Hornsby

Trial Tr. 7-34-36.

129. In 2010, the American Heart Association (“AHA”) and

the European Resuscitation Council (“ERC”), members of the

International Liaison Committee on Resuscitation (“ILCOR”)

57

released new CPR guidelines. Ex. 150 (PADI Training Bulletin),

at PADI001856. EFR and other CPR teaching organizations base

their CPR guidelines on the guidelines passed down by local

ILCOR members. Shreeves Trial Tr. 7-25. The new guidelines

maintained the 30:2 compressions to ventilations ratio. Ex.

150, at PADI001856. The change in the 2010 guidelines most

relevant to the instant case was a recommendation that

individuals initiate chest compressions prior to rescue breaths.

Shreeves Trial Tr. 7-26; Ex. 150, at PADI001857. The changes to

the AHA guidelines, as reported to PADI members, however, note

that “if you suspect possible drowning, begin with CPR rescue

breaths before chest compressions.” Ex. 150 (PADI Training

Bulletin), at PADI001857.

130. In 2010 and 2011, through its newsletter titled “The

Responder,” EFR sent information to its instructors regarding

upcoming changes to the EFR guidelines. Ex. 151. The 2010

quarter 4 Responder summarized the AHA’s CPR changes, and

included the recommendation that in “possible drowning” cases,

CPR with rescue breaths should be administered before chest

compressions. Id. at PADI001543.

131. The 2011 quarter 1 Responder provided that according

to the new guidelines from the AHA, “[u]ntrained bystanders

58

should provide compression only CPR for an adult victim who

suddenly collapses or follow the directions of an EMS

dispatcher.” Id. at PADI001548. “Trained lay rescuers,”

however, “should continue to perform compressions and

ventilations during CPR.” Id.

132. The Responder also included a section entitled

“Drowning-A Special Resuscitation Situation.” Id. This section

provided as follows:

The 2010 AHA guidelines classified drowning as a

special resuscitation situation that warrants

additional recommendations. These recommendations

support the current training curriculum for the

PADI Rescue Diver course for inwater and out-of-

water resuscitation and rescue breathing. For

more information refer to the PADI Rescue Diver

Manual or PADI Instructor Manual.

Because the duration and severity of hypoxia

sustained is the single most important

determinant of outcome, rescuers should remove

drowning victims from the water by the fastest

means available and should begin resuscitation as

quickly as possible. Inwater mouth-to-mouth

ventilation may be helpful when administered by a

trained rescuer.

Id. (footnotes omitted).

133. EFR issued a new instructor’s manual following the

revisions along with a student manual. Shreeves Trial Tr. 7-26.

However, the PADI Rescue Diver Manual recommendations for rescue

59

of a submerged unresponsive diver have not been revised since at

least 2006. Id. 7-27.

134. Plaintiff’s own experts, Dr. Cianci and Weber endorsed

PADI guidelines. Cianci Trial Tr. 4-55; Weber Trial Tr. 5-76.

Dr. Cianci testified that McCrea and Smith should have followed

the PADI guidelines but did not, and Weber testified that if

McCrea and Smith had followed the PADI guidelines and protocols,

she would have no issue with their rescue attempt. Cianci Trial

Tr. 4-55; Weber Trial Tr. 5-76.

135. Based on the evidence adduced and as discussed further

below, the Court finds that despite Plaintiff’s contention to

the contrary, PADI did not act unreasonably with respect to the

dissemination of EFR guidelines to its members. PADI and EFR

informed their instructors that although there would be changes

to CPR guidelines, the guidelines provided in the PADI materials

should be relied on for near-drowning victims. Moreover, the

materials distributed to PADI and EFR members included

information that in drowning cases, rescue breaths should be

administered prior to chest compressions.

VI. Pain and Suffering, Witnessing the Incident, Family Life, and Earning Capacity

136. The Court finds that Bill was conscious of his

impending death for a period of at least 1 to 2 minutes. The

60

Court heard testimony on the physiological experience of death

by drowning, during which the submerged victim holds his breath

as long as he can (undoubtedly in great physical and emotional

pain) and then involuntarily inhales water, leading to loss of

consciousness and, ultimately, if proper rescue and

resuscitation measures are not promptly taken, to heart and

brain damage. Cianci Trial Tr. 4-13-15.

137. Accordingly, the Court deems it reasonable to infer,

and therefore finds, that while Bill’s period of pre-death

conscious pain and suffering may have been relatively short

temporally, it was agonizing and frightful.

138. Hambrook testified that while McCrea was giving Bill

chest compressions, she remained close to Bill’s side, “telling

him [she] loved him,” that he “needed to wake up,” “the kids

loved him, and that [they] needed him to stay with [them].”

Hambrook Trial Tr. 8-96. Hambrook traveled with Bill in the

ambulance back to the hospital and after the doctor informed her

Bill did not have a chance of survival, she “said good-bye to

him and [] held him.” Id. 8-102.

139. Nicolas testified that he witnessed his father’s

“unconscious body” being towed back to the boat. Nicolas Trial

Tr. 2-130.

61

140. Chelsea testified that she saw Smith tow her father

back to the boat while he was unconscious and his face was a

purple color. Chelsea Trial Tr. 5-145, 6-76-77. During the

trip back to the harbor Chelsea saw her father’s foot “hanging

off the edge of the boat” and “bouncing in the water.” Id. 5-

148. She also testified that she and Nicolas waited at the

hospital to hear about her father’s condition, and that

eventually, her mother informed them that her father “didn’t

make it.” Id. 5-153.

141. Based on the testimony adduced and the demeanor of the

witnesses, the Court finds that Hambrook, Chelsea, and Nicolas,

who were all present on the HSS dive boat while the failed

resuscitation attempt proceeded, and who were also present at

the Kona Hospital when Bill was pronounced dead shortly

thereafter, suffered significant emotional distress.

142. The Court finds, based on the evidence, that Hambrook

and Bill were well suited to each other as a couple and that they

had a happy marriage. See, e.g., Hambrook Trial Tr. 8-64-65, 8-

66-67, 8-72-77. The Court finds that Bill, only 49 years old the

day he died, was a robust, fun-loving and industrious man, who

was devoted to his family. Id.

62

143. The Court finds, based on the evidence adduced, that

Hambrook was 50 years old when she lost Bill and that she was

very much in love and shared life’s challenges and joys with

Bill, cherishing the comfort and companionship he provided while

he lived.

144. The Court finds, based on the evidence adduced, that

Bill had a particularly close and loving relationship with his

children, Chelsea and Nicolas. See, e.g., Hambrook Trial Tr. 8-

76-77, Nicolas Trial Tr. 2-135-137, Chelsea Trial Tr. 5-163-173.

Further, that throughout their childhood, because Bill and

Hambrook had made a decision together as a couple that her

career would take precedence over his while the children were

young, Bill was closely involved in their day-to-day activities.

Id. When their father died, Chelsea was 17 years old and

Nicolas was 13.

145. The Court finds, based on the evidence adduced, that

Bill was skilled in working with his hands and with tools.

Further, that during the time his children were young he

personally made improvements to the family homes that increased

the properties’ value each time, including fencing three acres,

and grading their land at his last residence to produce an

63

enhanced “city lights” view. Hambrook Trial Tr. 8-67-69, 8-71-

76.

146. The Court finds, based on the evidence adduced, that

Bill was also skilled in using construction tools, including chop

saws, chain saws, skill saws, mitre saws, post pounders, drills,

sanders, routers, and drill presses. Ex. 66 (Male Rebuttal

Report), at 3. Bill also operated heavier construction

equipment, including Skid Steers, Augers, Concrete Mixers,

Backhoes, Front End Loaders, and Dump Trailers. Id. at 2-3.

147. The Court finds, based on the evidence adduced, that in

addition, to his “hands-on” skills, Bill also owned and operated

a small business, Fringe Fencing and Sod, Ltd., where he worked

initially on a part-time basis while the family was raising their

children and Bill was supporting Hambrook’s career development.

See, e.g., Hambrook Trial Tr. 8-71, 8-111.

148. The Court notes that Plaintiff’s economic damages

expert, Dr. Robert Male, found in his report as follows, based

on his review of relevant materials and communications with

Hambrook:

In the years just before this [sic] death, Mr.

Savage chose to apply his time and skills

(earning capacity) to developing the family home

& property; acting as primary parent/homemaker

while the children were younger so that Ms.

Hambrook could focus on developing her career.

64

Just before his death, Mr. Savage planned on

developing and working at this business full time

now that the children were older and self-

sufficient. He obtained Business licenses in

Okotoks and High River in 2012 (copies in the

file), developed a website, and had begun

advertising.

Ex. 66 (Male Rebuttal Report), at 3.

149. The Court finds, based on the evidence adduced, that

Bill’s company’s business activities included fencing and

landscape work for a large-scale golf course and housing

development project near Calgary. Wilson Trial Tr. 4-176-179.

150. The Court further finds, based on the evidence adduced,

that Bill had the capacity to earn an annual income of 60-75,000

Canadian dollars, if he chose to work as a foreman-supervisor of

a landscaping company in his community of Alberta, Canada, as

testified by Stephen Wilson (“Wilson”). Wilson Trial Tr. 4-181-

184. Wilson worked with Bill on a golf course project for three

years starting in 2006, in which Wilson acted as a project

manager and lead designer. Id. 4-173-174. The project required

a variety of fencing, and Bill was hired to work on the fencing,

which he did until 2008 or 2009. Id. 4-173-175. Bill also

worked on landscaping associated with the project and was paid

between 125,000-150,000 in Canadian dollars for his work. Id.

4-179.

65

151. The Court also finds based on Dr. Male’s expert report

and testimony that if Bill had continued to work at and develop

his business or if he had worked in a similar field, Bill had

the capacity to earn an annual income of 64,416 in Canadian

dollars. Ex. 65 (Male Expert Report), at 4, 6; Male Trial Tr.

6-161-170. Male’s calculation of Bill’s annual earning capacity

was based on Bill’s work skills and employment at the time of

his death as well as “the average earnings of Handymen and

Equipment Operators and the 10th percentile average earnings of

Contractors in Okotoks, Alberta, Canada.” Ex. 65 (Male Expert

Report), at 4.

CONCLUSIONS OF LAW

Having evaluated the factual aspects of Plaintiff’s

claims, the Court will now make its conclusions of law.

I. Jurisdiction and Venue

1. This Court has subject matter jurisdiction in

admiralty pursuant to 28 U.S.C. § 1333, as noted in the Court’s

Summary Judgment Order. See Jerome B. Grubert, Inc. v. Great

Lakes Dredge & Dock Co., 513 U.S. 527, 532-34 (1995) (noting

that to determine whether there is admiralty jurisdiction the

court must consider (1) whether the tort occurred on navigable

water, and (2) whether the incident has a “potentially

66

disruptive impact on maritime commerce” and the general

character of the activity giving rise to the incident bears a

“substantial relationship to traditional maritime activity”).

2. Here, there was no dispute that the incident occurred

in navigable waters. Summary Judgment Order, at 15. Moreover,

Plaintiff’s claims involve allegations that resuscitation

efforts on board the vessel were negligent, and the

administration of first aid at sea has been found to be a

traditional maritime activity. Id. (citing In the Matter of the

Complaint of Kanoa, Inc., 872 F. Supp. 740, 745 & n3 (D. Haw.

1994), overruling on other grounds recognized by McClenahan v.

Paradise Cruises, Ltd., 888 F. Supp. 120, 123 (D. Haw. 1995);

Courtney v. Pacific Adventures, Inc., 5 F. Supp. 2d 874, 878

(1998)); see also Sinclair v. Soniform, Inc., 935 F.2d 599, 602-

03 (3d Cir. 1991) (finding that scuba diver’s claim of

negligence with respect to the administration of treatment for

injury fell within admiralty jurisdiction where 1) the crew’s

activity affected maritime commerce because the vessel “was

engaged in a commercial venture” and had the potential to impact

maritime commerce because other vessels could have been called

for help; and 2) the injuries at the heart of the claim of

negligence involved the crew’s “duty to provide adequate care to

67

an injured passenger” which relates “to a traditional goal of

admiralty law”). Accordingly, admiralty jurisdiction applies.

3. Venue is proper as the events that gave rise to this

action occurred within this district, 28 U.S.C. 1391(b)(2).

II. Applicable Law

4. In Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.

199, 206 (1996), the Supreme Court held that “[w]ith admiralty

jurisdiction . . . comes the application of substantive

admiralty law.” (citation omitted). However, the Court noted

that “[t]he exercise of admiralty jurisdiction . . . does not

result in automatic displacement of state law.” Id. (citation

omitted).

5. Since Yamaha, courts have held that state law may be

applied to supplement general maritime law as long as there is

no conflict. As noted in the Court’s Summary Judgment Order,

Since Calhoun, courts have generally found that

state laws that do not conflict with general

maritime law may be applied in the context of

admiralty jurisdiction. See Hawaii Stevedores,

Inc. v. Island Cement, LLC, Civ. No. 09-00250 DAE-

BMK, 2009 WL 3681875, at *4 (D. Haw. Nov. 3, 2009)

(“Because Hawaii’s assumpsit statute does not conflict with general maritime law, Haw. Rev. Stat.

§ 607-14 applies here under the ‘maritime but local’ doctrine.”); 17A James Wm. Moore, et al., Moore’s Federal Practice ¶ 124.46 (3d ed. 2009) (state law applies if not in conflict with general

maritime law (citing Calhoun, 516 U.S. at 215-16)).

68

Summary Judgment Order at 17 n. 8.

6. Courts have also held that consistent state law may

supplement admiralty remedies for the death of nonseafarers in

state territorial waters. Matheny v. Tennessee Valley Authority,

503 F. Supp. 2d 917, 922 (M.D. Tenn. 2007) (“Under the Supreme

Court’s most recent line of cases, state law is to be applied

where it ‘fills gaps’ or provides relief that otherwise would

not be available under admiralty law; but, where state law would

supersede or limit clearly defined maritime causes of action, it

cannot be applied.”); In re Air Crash at Belle Harbor, New York

on Nov. 12, 2001, No. MDL 1448 (RWS), 2006 WL 1288298, at *15

(S.D.N.Y. May 9, 2006) (“Subsequent federal courts, consistent

with the rationale of Yamaha, have allowed more generous state

law to supplement the Moragne death action and rejected arguments

by defendants that Yamaha requires application of state law even

when that law is narrower than the Moragne cause of action.”).

7. Defendants claim that pursuant to The Tungus v.

Skovgaard, 358 U.S. 588, 592 (1959), if Plaintiff seeks to

recover under Hawaii Revised Statutes (“HRS”) Chapter 663

(covering wrongful death actions), all of the provisions of the

chapter should apply to their claims under Hawaii law. In

Tungus, the Court held:

69

(I)f the admiralty adopts the statute as a rule

of right to be administered within its own

jurisdiction, it must take the right subject to

the limitations which have been made a part of

its existence. * * * The liability and the remedy

are created by the same statutes, and the

limitations of the remedy are therefore to be

treated as limitations of the right.

Id. at 593 (alterations in original) (citation omitted).

8. However, Tungus has been recognized as largely

overruled by Yamaha. Specifically, in Calhoun v. Yamaha Motor

Corp., U.S.A., 216 F.3d 338, 349 (3d Cir. 2000), the Third

Circuit noted that the quotation cited to by Defendants from

Tungus was based upon the Supreme Court’s Holding in The

Harrisburg, 119 U.S. 199 (1886). The Third Circuit explained

that at the time The Harrisburg and The Tungus were decided “no

federal statute provided a cause of action for wrongful death in

territorial waters” and accordingly, these two cases suggested

that “such causes of action were to apply state law liability

standards.” Id. However, “[t]his principle, through which the

states remained a virtually equal participant in regulating the

means by which an individual could obtain relief for another’s

death on the water, seemingly changed as a result of the Supreme

Court’s opinion in Moragne v. States Marine Lines, Inc., 398

U.S. 375 (1970),” in which the Supreme Court created a federal

70

cause of action under common law for seamen killed in

territorial waters. Id.

9. While the Third Circuit acknowledged that Tungus had

not been expressly overruled, it determined that the

significance of The Tungus has been narrowed:

We believe that The Tungus remains good law only

with respect to its broader proposition

concerning the role that state regulation may

play in the admiralty arena. The Supreme Court

has lent credence to this broader proposition by

authorizing the Calhouns’ use of Pennsylvania's wrongful death/survival statute only as the

vehicle through which they may prosecute their

action. The more specific holding of The Tungus,

however—that federal courts must apply all facets

of state law when a plaintiff seeks to proceed by

way of a cause of action grounded in state law—was effectively overruled in Moragne once the

Court invalidated the reasoning advanced by the

Court in The Harrisburg. The Tungus’s emphasis on the usage of the particulars of state law was

specifically trained on the fact that federal law

(both statutory and common law) did not provide a

cause of action for wrongful death on the water.

This was the very precept that was universally

struck down in Moragne, through which the Supreme

Court created such a cause of action. As such,

The Tungus’s remaining vitality rests only upon the limited proposition announced by the Supreme

Court earlier in this very litigation—that state

law may provide a procedure or a vehicle through

which a plaintiff may institute an action to

remedy death in territorial waters.

Id. at 350 (emphases added); see also In re Antill Pipeline

Const. Co., Inc., 866 F. Supp. 2d 563, 567 (E.D. La. 2011)

(“Since Yamaha, it has become settled that, in many cases, state

71

law remedies can be accessed and applied by plaintiffs in non-

seaman wrongful death actions to supplement those provided by

federal maritime law. . . . However, fault and liability

allocation has remained an issue governed by general federal

maritime law in such actions.”). The Court agrees with these

decisions.6

10. The Court finds and concludes that Plaintiff may seek

hedonic damages under Hawaii law to supplement her remedies

available under maritime law. State law on liability and

limitations of damages that conflicts with and limits the relief

available under federal maritime law should not be applied,

however, consistent with the above discussion.

11. In any event, as discussed further below, Defendants

have not cited to a Hawaii law at issue here, which would

change the Court’s findings and conclusions in the instant case.

III. Assumption of Risk, Waiver, and Releases

12. As noted in the Court’s Summary Judgment Order,

generally, assumption of risk has no place as a defense in

6 Defendants also rely on Pason v. Westfal-Larson Co., 504

F.2d 1226, 1229 (9th Cir. 1974), which quoted from The Tungus’s holding recited above. Pason, however, was decided prior to the

Supreme Court’s decision in Yamaha, which further explained the interaction between state law and federal law in wrongful death

claims.

72

admiralty. See, e.g., Simeonoff v. Hiner, 249 F.3d 883, 888

(9th Cir. 2001) (“We have held that in admiralty cases

assumption of risk is not a defense and cannot be applied to bar

or reduce damages sustained by seamen.”); Skidmore v.

Grueninger, 506 F.2d 716, 727 (5th Cir. 1975) (“Further, this

Court has held that the doctrine of assumption of risk does not

apply in maritime cases where seamen are not involved.”); De

Sole v. United States, 947 F.2d 1169, 1174 (4th Cir. 1991) (“The

tenets of admiralty law, which are expressly designed to promote

uniformity, do not permit assumption of risk in cases of

personal injury whether in commercial or recreational

situations.”).7

13. Even if the Court applied Hawaii law with respect to

assumption of risk, the defense would not apply in the instant

case. In Hawaii, implied assumption of risk may serve as a

complete defense “where the defendant’s conduct at issue is an

7 Courts “apply the doctrine of comparative fault” in admiralty cases as opposed to assumption of risk. See

Simeonoff, 249 F.3d at 888-89 (noting that assumption of risk is

not a defense in admiralty law but “on the other hand” the doctrine of comparative fault is applicable); Skidmore, 506 F.2d

at 725-27 (finding assumption of risk inapplicable in “maritime cases where seamen are not involved” but considering defense of contributory negligence). The Court considers the issue of

comparative fault below.

73

inherent risk of the sports activity.” Foronda ex rel. Estate

of Foronda v. Hawaii Int’l Boxing Club, 25 P.3d 826, 841 (Haw.

Ct. App. 2001). Notwithstanding, “[a] defendant may be held

liable to the plaintiff for creating or countenancing risks

other than risks inherent in the sport, or for increasing

inherent risks.” Id. Here, as discussed further below,

defendants Smith and McCrea increased the risks associated with

the dive through their actions and inactions. Smith failed to

adequately supervise the dive and did not have a proper dive

plan in place nor did he execute the dive plan appropriately.

Both Smith and McCrea failed by providing inadequate dive

briefings, not having proper emergency procedures in place, and

by not working together to administer CPR along with oxygen to

resuscitate Bill. Moreover, the circumstances that led to

Bill’s death in the instant case, including the overhead

environment, surge, breaking waves, and the depth change,

presented a greater risk than the inherent risks typically

encountered in scuba diving, which defendants did not adequately

warn about. Accordingly, implied assumption of risk would not

apply, even under Hawaii law.

14. With respect to the issue of waiver, the Court finds

and concludes that the Release documents signed by Bill and

74

Hambrook purporting to waive negligence claims against Smith,

HSS, and McCrea are unenforceable as a matter of admiralty law.

In particular, 46 U.S.C. § 30509 applies to invalidate the

Release with respect to these defendants.8

46 U.S.C. § 30509 provides in relevant part:

(a) Prohibition.--

(1) In general.--The owner, master, manager,

or agent of a vessel transporting passengers

between ports in the United States, or between a

port in the United States and a port in a foreign

country, may not include in a regulation or

contract a provision limiting--

(A) the liability of the owner, master, or

agent for personal injury or death caused by the

negligence or fault of the owner or the owner's

employees or agents; or

(B) the right of a claimant for personal

injury or death to a trial by court of competent

jurisdiction.

(2) Voidness.--A provision described in

paragraph (1) is void.

(b) Emotional distress, mental suffering, and

psychological injury.--

8 The Court previously determined in its Partial Summary

Judgment Order that the statute did not invalidate the Releases

as to PADI. Summary Judgment Order, at 16. The Court again

finds and concludes that the statute does not invalidate the

Releases as to PADI since PADI is not the owner, master,

manager, agent, operator, or crewmember of the vessel.

75

(1) In general.--Subsection (a) does not

prohibit a provision in a contract or in ticket

conditions of carriage with a passenger that

relieves an owner, master, manager, agent,

operator, or crewmember of a vessel from

liability for infliction of emotional distress,

mental suffering, or psychological injury so long

as the provision does not limit such liability

when the emotional distress, mental suffering, or

psychological injury is--

(A) the result of physical injury to the

claimant caused by the negligence or fault of a

crewmember or the owner, master, manager, agent,

or operator;

(B) the result of the claimant having been

at actual risk of physical injury, and the risk

was caused by the negligence or fault of a

crewmember or the owner, master, manager, agent,

or operator; or

(C) intentionally inflicted by a crewmember

or the owner, master, manager, agent, or

operator.

The previous version of the statute, Section 183c,

similarly provided:

It shall be unlawful for the manager, agent,

master, or owner of any vessel transporting

passengers between ports of the United States or

between any such port and a foreign port to

insert in any rule, regulation, contract, or

agreement any provision or limitation (1)

purporting, in the event of loss of life or

bodily injury arising from the negligence or

fault of such owner or his servants, to relieve

such owner, master, or agent from liability, or

from liability beyond any stipulated amount, for

such loss or injury, or (2) purporting in such

event to lessen, weaken, or avoid the right of

any claimant to a trial by court of competent

76

jurisdiction on the question of liability for

such loss or injury, or the measure of damages

therefor. All such provisions or limitations

contained in any such rule, regulation, contract,

or agreement are declared to be against public

policy and shall be null and void and of no

effect.

The two versions of the statute are not substantively distinct

with respect to the claims at issue here.

15. Notably, 46 U.S.C. § 30502 states that “[e]xcept as

otherwise provided,” Chapter 305, which includes § 30509,

“applies to seagoing vessels and vessels used on lakes or rivers

or in inland navigation, including canal boats, barges, and

lighters.”

16. In Pacific Adventures, 5 F. Supp. at 880, this

district court held that Section 183c applied to a release for

personal injuries in the context of a scuba diving excursion.

Pursuant to Pacific Adventures, and as noted in the Court’s

Summary Judgment Order, Section 30509 applies to this admiralty

action and “generally bars releases of liability for personal

injuries [or death] arising out of negligence.” Summary

Judgment Order, at 15-16; see also Pacific Adventures, 5 F.

Supp. at 879 (noting that “[s]ection 183c is not limited to

common carriers but applies to ‘all vessels used on lakes or

77

rivers or in inland navigation, including boats, barges, and

lighters’” (quoting 46 U.S.C. § 188 (recodified at § 30502)).

17. Section 30509 applies to owners, masters, managers,

and agents of vessels. There is no dispute that Smith and HSS

operated and owned the vessel at issue. Accordingly, the Court

finds and concludes that the Releases at issue are invalid as to

Smith and HSS.

18. With respect to McCrea, the Court finds and concludes

that McCrea was an agent of the vessel or vessel owner such that

the statute applies to invalidate the Releases as against him.

In Pacific Adventures, this district court considered the

defendant’s argument that Section 183c did not apply to

invalidate the release against him because he was a diving guide

and deckhand on the vessel at issue, but was not the agent of

the vessel’s owner. 5 F. Supp. 2d at 880. The court held that

to establish agency for purposes of Section 183c: “first, the

principal must exercise significant control over the agent’s

activities, and, second, the agent must be engaged in conducting

the business of the principal.” Id. at 880-881. The court

rejected the dive guide’s contention that as a matter of law, he

was a non-agent independent contractor. Id. at 881. In this

respect, the court noted that the defendant acted as both a

78

deckhand and a dive guide, and that he conceded that in dropping

the anchor prior to the dive, the vessel owner “had the right to

control [his] conduct.” Id. Thus, the court determined that

the dive guide’s duties were “not limited to providing a service

to another without supervision.” Id.

19. Here, McCrea testified that he was an independent

contractor for Smith, but he conceded that while serving as a

captain on the vessel he was under Smith’s control. Ex. 179

(McCrea Dep. Tr. 27, 29). McCrea additionally agreed that while

working for Smith, he accepted the fact that Smith “would tell

[him] what to do.” Id. 30. Thus, the Court finds and concludes

that Smith exercised significant control over McCrea. It is

also clear that McCrea was “engaged in conducting the business

of” Smith given that he was hired by Smith to assist him during

the scuba diving excursion. See Pacific Adventures, 5 F. Supp.

2d at 881. McCrea’s responsibilities on the day of the dive

included mooring the boat, assisting with loading the equipment

on the boat and launching the boat, and, as required by United

States Coast Guard regulations, serving as boat captain while

Smith was in the water. As noted above, McCrea also provided a

dive briefing on the day of the incident. Accordingly, the

Court finds and concludes that McCrea acted as Smith’s and HSS’s

79

agent on the day of the incident. The Court further finds and

concludes that McCrea, in his aforesaid services as captain

while Smith was in the water, also was the manager and master of

the vessel. On this basis, the Court finds and concludes that

Section 30509 operates to invalidate the Releases as to McCrea.

20. The Court also concludes that the Release documents

are unenforceable even if Hawaii law governs this issue. Hawaii

Revised Statutes (“HRS”) § 663-1.54 titled “[r]ecreational

activity liability” provides:

(a) Any person who owns or operates a business

providing recreational activities to the public,

such as, without limitation, scuba or skin

diving, sky diving, bicycle tours, and mountain

climbing, shall exercise reasonable care to

ensure the safety of patrons and the public, and

shall be liable for damages resulting from

negligent acts or omissions of the person which

cause injury.

(b) Notwithstanding subsection (a), owners and

operators of recreational activities shall not be

liable for damages for injuries to a patron

resulting from inherent risks associated with the

recreational activity if the patron participating

in the recreational activity voluntarily signs a

written release waiving the owner or operator’s liability for damages for injuries resulting from

the inherent risks. No waiver shall be valid

unless:

(1) The owner or operator first provides full

disclosure of the inherent risks associated with

the recreational activity; and

80

(2) The owner or operator takes reasonable steps

to ensure that each patron is physically able to

participate in the activity and is given the

necessary instruction to participate in the

activity safely.

(c) The determination of whether a risk is

inherent or not is for the trier of fact. As used

in this section an “inherent risk”:

(1) Is a danger that a reasonable person would

understand to be associated with the activity by

the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would

understand to exist despite the owner or

operator’s exercise of reasonable care to eliminate or minimize the danger, and is

generally beyond the control of the owner or

operator; and

(3) Does not result from the negligence, gross

negligence, or wanton act or omission of the

owner or operator.

21. The Standing Committee that drafted Section 663-1.54

explained its purpose as follows:

Your Committee finds that this measure is

necessary to more clearly define the liability of

providers of commercial recreational activities

by statutorily invalidating inherent risk waivers

signed by the participants. Your committee

further finds that these inherent risk waivers

require providers to disclose known risks to the

participant, but these waivers do not extend

immunity to providers for damages resulting from

negligence. Thus, it is the intent of your

Committee that this clarification in the law will

appropriately reduce frivolous suits without

increasing risks to participants.

81

Haw. Stand. Comm. Rep. No. 1537, 1997 Senate Journal, at 1476;

see also King v. CJM Country Stables, 315 F. Supp. 2d 1061, 1067

(D. Haw. 2004) (providing detailed analysis of legislative

history of § 663–1.54).

22. Thus, Section 663-1.54 precludes any waiver of

liability for negligence against the owner or operator of a

business providing recreational activities, including scuba

diving excursions, and only permits waivers for damages

resulting from “inherent risks” that have been fully disclosed

to the customer. See King, 315 F. Supp. 2d at 1067.

23. The Court finds and concludes that because both Smith

and McCrea provided “recreational activities to the public,” the

statute applies. See HRS § 663-1.54(a). Smith owned and

operated HSS, a business providing scuba diving experiences to

the public. McCrea operated the business of HSS and Smith,

including by serving as a captain on the boat while Smith was in

the water as required by the United States Coast Guard,

providing a dive briefing to the divers (as the Court has found

above), and assisting the divers to enter the water.

24. Here, as the Court previously found, Smith and McCrea

did not inform Bill, Hambrook, or Nicolas regarding the

particular risks and dangers associated with the Skull Cavern

82

dive site, including the hazards related to surge, waves, and

diving in an overhead environment. In addition, as noted above,

these dangers presented a greater risk than the inherent risk

typically encountered in scuba diving. Moreover, there was no

Emergency Action Plan in place or implemented by Smith, which

left McCrea without any concrete knowledge as to the location of

the oxygen on the vessel. Relatedly, McCrea failed to check

with Smith regarding emergency procedures prior to the vessel

leaving for the dive site. Smith also failed to appropriately

execute the dive plan and adequately supervise the dive, as

discussed further below. Accordingly, Smith and McCrea

contributed to enhancing the inherent risks associated with the

activity at issue.

25. In summary, Smith and McCrea 1) failed to “provide[]

full disclosure of the inherent risks associated with the” dive;

2) failed to “take[] reasonable steps to ensure” the divers were

“physically able to participate in the activity”; 3) did not

give the divers “the necessary instruction to participate in the

activity safely”; and 4) did not take “reasonable care to

eliminate or minimize the danger.” See HRS § 663-1.54(b)(1)-

(b)(2), (c)(2). In addition, the dangers associated with the

dive resulted from Smith and McCrea’s negligence, and the risks

83

of the particular dive presented a greater risk than the

inherent risk typically encountered in scuba diving. See id.

(c)(1), (c)(3). For all of these reasons, the Releases at issue

in the instant case are invalid under Hawaii law pursuant to HRS

§ 663-1.54(b) and (c), even assuming Hawaii law applies.

IV. Negligence Claims

26. “[F]ederal courts have authority to develop a

substantive body of general maritime law applicable to cases

within the admiralty and maritime jurisdiction.” Sutton v.

Earles, 26 F.3d 903, 912 (1994) (alterations in original)

(citations omitted). “The general maritime law affords redress

for injuries and damage caused by negligence.” Id. (citation

omitted).

27. To recover for negligence under maritime law,

Plaintiff must establish duty, breach, causation, and damages.

Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948, 953 (9th

Cir. 2011). The owner of a vessel owes a duty of reasonable

care to all passengers. Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 630 (1959). “The degree of care

required is always that which is reasonable, but the application

of reasonable will of course change with the circumstances of

84

each particular case.” In re Catalina Cruises, Inc., 137 F.3d

1422, 1425 (9th Cir. 1998). As explained by the Ninth Circuit,

What is required . . . is merely the conduct of

the reasonable man of ordinary prudence under the

circumstances, and the greater danger, or the

greater responsibility, is merely one of the

circumstances, demanding only an increased amount

of care. In some instances, reasonable care

under the circumstances may be a very high degree

of care; in other instances, it may be something

less.

Id. (alteration in original) (quoting Rainey v. Paquet Cruises,

Inc., 709 F.2d 169, 170–71 (2d Cir. 1983)).

28. The Ninth Circuit has previously recognized a duty to

rescue in admiralty law cases. See Walsh v. Zuisei Kaiun K. K.,

606 F.2d 259, 262 (9th Cir. 1979) (holding owner of vessel owed

duty of rescue to the vessel’s pilot even though the owner was

not negligent with respect to the accident that led to the need

for a rescue).

29. Under Hawaii law, a plaintiff claiming negligence must

prove by a preponderance of evidence: 1) “A duty, or obligation,

recognized by the law, requiring the [defendant] to conform to a

certain standard of conduct, for the protection of others

against unreasonable risks”; 2) defendant’s failure to “conform

to the standard required”; 3) “[a] reasonably close causal

connection between the conduct and the resulting injury”; and 4)

85

loss or damage. Knodle v. Waikiki Gateway Hotel, Inc., 742 P.2d

377, 383 (Haw. 1987) (first alteration in original) (quoting

W.P. Keeton, Prosser and Keeton on the Law of Torts § 30, at

164–65 (5th ed. 1984)).

30. Generally, a person owes a duty of care to all

foreseeable plaintiffs “subjected to an unreasonable risk of

harm by the actor’s negligent conduct.” Seibel v. City and

County of Honolulu, 602 P.2d 532, 536 (Haw. 1979). “[I]t is not

necessary that the exact manner of the accident or injury be

foreseeable.” Okada v. State, 614 P.2d 407, 408 (Haw. Ct. App.

1980) (citing Restatement (Second) of Torts § 435(1) (1965)).

The test of what is reasonably foreseeable is “whether ‘there is

some probability of harm sufficiently serious that [a reasonable

and prudent person] would take precautions to avoid it.’”

Knodle, 742 P.2d at 385 (alteration in original) (citation

omitted). “In determining the existence of a duty, the court

must consider whether the relationship between the parties is

such that ‘the community will impose a legal obligation upon one

for the benefit of the other.’” Futi v. United States, No. 08-

00403 JMS/LEK, 2010 WL 2900328, at *18 (D. Haw. July 22, 2010)

(quoting Knodle, 742 P.2d at 385)).

86

31. An “actor’s negligent conduct is a legal cause of harm

to another if (a) his conduct is a substantial factor in

bringing about the harm, and (b) there is no rule of law

relieving the actor from liability.” Restatement (Second) of

Torts § 431 (1965).

32. The Court determines that PADI’s guidelines,

recommendations, and requirements—contained for example in its

training materials—establish what a reasonably prudent

divemaster and rescue diver, should follow. See, e.g., Gingo

Trial Tr. 10-196; Cianci Trial Tr. 4-55; Weber Trial Tr. 5-76.

This is particularly so in the instant case, given that Smith

and McCrea were certified by and received some of their training

through PADI.

33. The Court finds and concludes that Smith and McCrea

had a duty of reasonable care for the safety of their customer

divers—namely Bill, Hambrook, and Nicolas—and that they

breached their duty, legally causing Bill’s death.

V. Negligence Claims Against Smith/HSS

A. Selection of Dive Site

34. As noted in the Court’s findings of fact, the Court

finds that Smith acted reasonably in his selection of the dive

site, insofar as the divers were going to look at but not enter

87

the arches at Skull Cavern. The Court heard substantial

evidence that the dive site is commonly frequented by

inexperienced certified divers, and the Franko Map describes the

dive as appropriate for beginners. Accordingly, the Court finds

and concludes that Smith did not breach his duty of care in

selection of the dive site and was therefore not negligent in

this respect.

B. Assessment of Environmental Conditions

35. The Court has also found that Smith acted reasonably

with respect to assessing the ocean and weather conditions at

the dive site prior to starting the incident dive. The Court

heard substantial evidence that the conditions were appropriate

for diving with waves approximately one to two feet, sunny

skies, and mild wind. Smith testified that he observed the wave

sets before arriving at the dive site and that when he arrived,

he stayed on the boat for about ten minutes prior to the dive,

allowing him to assess the conditions during this time. Ex. 178

(Smith Dep. Tr. 242-43). McCrea also assessed the water

conditions while he was under water mooring the boat, and agreed

with Smith that the conditions were appropriate for diving.

McCrea Trial Tr. 3-65-66. Accordingly, the Court finds and

concludes that Smith did not breach his duty of care with

88

respect to assessing the environmental conditions prior to

starting the incident dive and was therefore not negligent in

this respect.

C. Dive Plan

36. The Court has found that Smith’s dive plan was

unreasonable. Smith testified that his dive plan included

swimming up to the arches at Skull Cavern, assessing the

conditions once he arrived at the arches, and entering the

arches if the conditions were appropriate. Ex. 178 (Smith Dep.

Tr. 228); Smith Trial Tr. 2-78. Moreover, the evidence

indicated that the arches at Skull Cavern are considered

overhead environments. There was also evidence that diving in

an overhead environment requires specialized training, which

Bill, Hambrook, and Nicolas did not have, and Smith was informed

of their experience level prior to selecting the dive site. See

Gingo Trial Tr. 10-197; Ex. 180 (Engel Dep. Tr. 200); Ex. 11

(Open Water Diver Manual), at 139; Hambrook Trial Tr. 8-86.

There was also evidence that entering the arches at Skull Cavern

can be dangerous because of the surge and wave sets at the site.

Ex. 69 (Weber Report), at 8. Given the particular dangers

associated with entering the arches at Skull Cavern and the

level of experience of the divers, including the fact that

89

Nicolas was a 13-year-old junior diver and the divers did not

have training in diving in an overhead environment, the Court

finds and concludes that Smith breached his duty of reasonable

care.

37. The Court further finds that Smith’s breach was a

legal cause of Bill’s death. Bill would not have experienced

the surge and wave conditions that caused him to be swept to the

surface, eventually leading to his drowning, if the dive plan

had not involved entry into the arches at Skull Cavern. The

overhead environment also contributed to the fatality as Bill

did not have training or instruction on how to navigate through

the overhead environment and thus was unprepared to deal with

the related hazards. The Court therefore finds that Smith was

negligent with respect to his creation of the dive plan. The

Court also reiterates its finding that Smith enhanced the

inherent risks and hazards associated with the dive through his

negligence.

D. Dive Briefing

38. As noted in the Court’s findings of fact, the Court

finds that Smith gave an inadequate dive briefing to Bill,

Hambrook, and Nicolas prior to the dive and the Court finds and

concludes that as a result, Smith breached his duty of

90

reasonable care. Smith testified that he told the divers to

avoid whitewater, which may look like champagne bubbles and that

they should not swim towards it. However, this information was

insufficient. Indeed, Smith admitted that he did not warn the

divers specifically about the possibility of surge at the dive

site and that he did not warn about wave sets, although wave

sets are a foreseeable occurrence in Hawaii and on the Kona

coast. Smith also did not provide sufficient warnings about how

to navigate through an overhead environment and how to deal with

the change in depth associated with the site. Both Plaintiff’s

expert and Defendants’ expert provided testimony suggesting that

a reasonably prudent divemaster would have warned about these

conditions. Weber Trial Tr. 5-62-63; Ex. 69 (Weber Expert

Report), at 6; Gingo Trial Tr. 10-173-174, 10-196, 10-201-205.

39. The Court has also found that if Bill and Hambrook had

been informed about these dangers, they would have chosen to go

to a different dive site. Moreover, as the Court has found, the

inadequate dive briefings contributed to the fatality because

Bill was unprepared to deal with the hazardous conditions he

encountered at the arches at Skull Cavern. Accordingly, the

Court finds and concludes that Smith’s failure to provide an

adequate dive briefing was a legal cause of Bill’s death. The

91

Court therefore finds and concludes that Smith was negligent in

his failure to provide an adequate dive briefing in the instant

case. The Court reiterates its finding that in this respect,

Smith enhanced the inherent risks and hazards associated with

the dive.

E. Execution of Dive Plan

40. The Court finds and concludes that Smith breached his

duty of reasonable care with respect to the execution of his

dive plan and the supervision provided during the incident dive.

In particular, Smith did not follow his plan to assess the

environmental conditions prior to entering the arches at Skull

Cavern, including the presence of surge, and he failed to

closely monitor the inexperienced divers during the dive.

Smith’s lack of close supervision of the divers resulted in his

inability to rescue Bill before he reached the surface. Smith

also led Bill into Skull Cavern, which included an overhead

environment and the presence of surge, even though Smith knew

Bill had not received training for diving in an overhead

environment.

41. As a consequence of Smith’s failure in this regard,

Bill was caught up in the surge once he entered Skull Cavern and

was swept to the surface of the water. Accordingly, the Court

92

finds that Smith’s breach was a legal cause of Bill’s death.

The Court therefore finds and concludes that Smith was negligent

with respect to the execution of the dive plan and in failing to

adequately supervise the incident dive. The Court reiterates

its finding that Smith enhanced the inherent risks and hazards

associated with the dive through his negligence.

F. Recovery and Tow to Boat

42. The Court has found that it was reasonable for Smith

to forego providing Bill with rescue breaths while towing him

back to the boat. The UHMS article provides several

qualifications to its recommendations that rescue breaths be

given in the water, including that the decision to provide

rescue breaths in the water is context sensitive. Ex. 59 (UHMS

Article), at 1107. The article notes that where removal from

the water is possible within less than one minute, a rescuer may

proceed to tow the victim to the boat without providing rescue

breaths. Id. 1107. Both Dr. Cianci and Dr. Weaver testified

that they were familiar with most of the authors of the article

and largely agreed with the recommendations made in the article.9

9 Dr. Cianci disagreed with a statement that “rescue and resuscitation of an unresponsive diver from depth is frequently

unsuccessful,” noting that “the literature is replete with (continued . . . )

93

Cianci Trial Tr. 4-24-26, 4-29-37; Weaver Trial Tr. 6-21-31, 6-

32-39.

43. Here, Smith testified that it took him one minute or

less to tow Bill to the boat—a distance of about fifty feet,

according to McCrea. Ex. 178 (Smith Dep. Tr. 270-71); Ex. 331A

(McCrea Map). This estimate was supported by the testimony that

it took 13-year-old Nicolas about one minute to swim back to the

mooring line from the entrance of Skull Cavern, which was about

eighty feet away from the boat and mooring line. Nicolas Trial

Tr. 2-128; Ex. 331A (McCrea Map). Hambrook also testified that

it took her about 30 or 40 seconds to return to the mooring line

after she experienced the surge. Hambrook Trial Tr. 9-171-172.

Smith estimated that it took only a few seconds to get Bill onto

the swimstep of the boat. Id. at 273-74. Under these

circumstances, the Court finds and concludes that Smith did not

breach his duty of care by not providing rescue breaths while

towing Bill back to the boat. Accordingly, the Court concludes

( . . . continued)

divers who have been rescued from depth who’ve done well.” Cianci Trial Tr. 4-37. Dr. Weaver testified that a study cited

to in the article was done in a pool, with mannequins, and with

highly trained individuals, and questioned the applicability of

the study to the instant case. Weaver Trial Tr. 6-42-43.

94

that Plaintiff failed to prove by a preponderance of the

evidence that Smith was negligent in this respect.

G. Use of Oxygen, CPR, & Emergency Action Plan

44. As noted in the Court’s findings of fact, the Court

finds that once Bill was aboard the boat, Smith and McCrea

should have worked together to administer CPR in conjunction

with oxygen therapy to Bill as they learned in their training,

and as instructed by PADI, prior to returning to the boat

harbor. Smith testified that there were three oxygen tanks and

two oxygen masks on board the day of the incident. Ex. 178

(Smith Dep. Tr. 279). However, instead of assisting McCrea with

Bill’s resuscitation using the oxygen, Smith took control of the

boat and left McCrea on his own to attempt to resuscitate Bill.

Given that the boat was approximately eight to ten minutes from

the harbor and Bill was in dire condition, this decision was

unreasonable. The Court notes that McCrea testified he did not

check Bill’s pulse, and there was no evidence that Smith checked

Bill’s pulse. McCrea Trial Tr. 3-89, 4-117. Smith also acted

unreasonably in his failure to have and to implement an

Emergency Action Plan. Because there was no plan in place,

McCrea was unaware of the location of the oxygen on board the

boat and was similarly unfamiliar with the appropriate place to

95

administer the oxygen on the boat. Smith also failed to

instruct McCrea to use oxygen during Bill’s resuscitation and

failed to instruct him as to where the oxygen was located.

Accordingly, the Court finds and concludes that Smith breached

his duty of reasonable care with respect to assisting in the

administration of oxygen during Bill’s resuscitation and in his

failure to have in place and implement an Emergency Action Plan.

45. The Court finds and concludes that these failures were

a legal cause of Bill’s death. The Court heard testimony that

there is a window of survivability for drowning victims that

lasts between two five minutes, and the boat was eight to ten

minutes away from the harbor, indicating that time was of the

essence. Cianci Trial Tr. 4-20-22; Weaver Trial Tr. 6-48. The

Court has also heard testimony and evidence regarding the

critical importance of oxygen administration for near-drowning

victims and all of the evidence, including PADI sources

indicated that oxygen is “one of the single most important”

resuscitative measures in these cases. See Ex. 92 (PADI Rescue

Diver Manual), at 29. Based on this evidence, the Court finds

and concludes that Smith and McCrea’s failure to together use

the oxygen on the boat in conjunction with CPR to attempt to

resuscitate Bill, which was influenced by the failure to have in

96

place and implement an Emergency Action Plan, was a substantial

factor leading to Bill’s death. The Court therefore concludes

that Smith was negligent in this respect. The Court reiterates

its finding that Smith enhanced the inherent risks and hazards

associated with the dive through his negligence.

H. HSS Liability

46. The Court notes that HSS was the dive company in

charge of planning and implementing the scuba dive and Smith

acted and operated on behalf of HSS on the day of the dive,

making HSS liable for Smith’s related negligence. The Court

finds and concludes that Smith was acting within the scope of

his authority as captain and divemaster at the time of the

subject accident. The Court additionally notes that Smith is

the sole proprietor of HSS. Smith Trial Tr. 1-59. For all of

these reasons, HSS is liable for Smith’s negligence and is

subject to joint and several liability as discussed further

below.

VI. Negligence Claims Against McCrea

A. Dive Briefing

47. The Court has found that McCrea gave an inadequate

dive briefing to Bill, Hambrook, and Nicolas. As the Court

noted above, Hambrook testified that McCrea provided a short

97

dive briefing and told the divers to stay low in the water and

that they would follow Smith toward shore and “go through an

archway on the right.” Hambrook Trial Tr. 8-90, 9-120. Nicolas

recalled someone giving a dive briefing that included a warning

to avoid surface water, stay at depth, and that they would be

entering an opening that looked like the eye of a skull; and

Chelsea recalled that she heard McCrea say, “I told them to stay

away from the rocks” while her father was in distress. Nicolas

Trial Tr. 2-120, 2-173-174; Chelsea Trial Tr. 5-132. Although

McCrea was not serving as divemaster on the day of the incident

dive, the Court concludes that once he took on the

responsibility of providing a dive briefing, he was required to

provide an adequate dive briefing to comport with his duty of

reasonable care. As with Smith, McCrea did not warn about the

particular hazards associated with the dive site. The Court

also notes that McCrea was unaware of the experience level of

the divers, leaving him unprepared to provide appropriate

briefing commensurate with the divers’ skill level. See Ex. 179

(McCrea Dep. Tr. 149). On these bases, the Court finds and

concludes that McCrea breached his duty of care in this regard.

48. The Court has also found that if Bill and Hambrook had

been informed about these dangers, they would have chosen to go

98

to a different dive site. Moreover, as noted above, the

inadequate dive briefings contributed to the fatality because

Bill was unprepared to deal with the hazardous conditions he

encountered at the arches at Skull Cavern. Accordingly, the

Court finds and concludes that McCrea’s failure to provide an

adequate dive briefing was a legal cause of Bill’s death. The

Court therefore finds and concludes that McCrea was negligent in

his failure to provide an adequate dive briefing in the instant

case. The Court reiterates its finding that in this respect,

McCrea enhanced the inherent risks and hazards associated with

the dive.

B. Use of Oxygen, CPR, & Emergency Procedures

49. As noted above, Smith and McCrea acted unreasonably in

their failure to work together to provide CPR and use the oxygen

available on board to resuscitate Bill. The Court rejects

McCrea’s reasoning for not using the oxygen, i.e., that he could

not apply it on the swim step while the boat was moving and that

he was concerned about the use of the oxygen while the engine

was running. The Court has found that Smith and McCrea should

have administered the oxygen prior to making the trip back to

the harbor, in which case these concerns would not be relevant.

The Court reiterates its earlier conclusion that oxygen is a

99

critical means of resuscitation. Moreover, as discussed above,

given the survivability window of two to five minutes as

explained by the experts, and the fact that the boat was eight

to ten minutes away from the harbor, there was a need for

immediate care prior to reaching the boat harbor. The Court

also notes that McCrea believed there was oxygen on board and

thus, should have located the oxygen and had it ready on the

swimstep as soon as it became apparent that Bill was having

trouble. See Ex. 70 (Weber Supplemental Report), at 5.

50. McCrea’s failures with respect to emergency procedures

also contributed to the unreasonable resuscitation attempt.

McCrea admitted that he was unclear as to the location of the

oxygen on board and had not confirmed that oxygen was actually

available on the day of the incident dive. The Court finds and

concludes that McCrea should have consulted with Smith regarding

emergency procedures prior to leaving the harbor for the dive

site, and he should have become familiar with such procedures,

particularly since he was serving as captain of the vessel

during the dive, as required by the United States Coast Guard.

51. Because the Court has found that these failures were a

legal cause of Bill’s death, the Court finds and concludes that

McCrea was negligent in this respect. The Court reiterates its

100

finding that McCrea enhanced the inherent risks and hazards

associated with the dive through his negligence.

VII. Gross Negligence Claims Against Smith/HSS and McCrea

52. Because the Court’s jurisdiction is in admiralty, the

Court “looks to the common law in considering maritime torts.”

Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1015 (9th

Cir. 1999) (alterations omitted) (citation omitted). Hawaii law

recognizes that gross negligence has been defined as

“includ[ing] indifference to a present legal duty and utter

forgetfulness of legal obligations so far as other persons may

be affected.” Pancakes of Hawaii, Inc. v. Pomare Properties

Corp., 944 P.2d 83, 90 (Haw. Ct. App. 1997) (alterations

omitted) (citation omitted)); see also Mullaney v. Hilton Hotels

Corp., 634 F. Supp. 2d 1130, 1154 (D. Haw. 2009) (noting that to

succeed on a claim for gross negligence a party must show that

there has been “an entire want of care which would raise the

presumption of a conscious indifference to consequences”

(citation omitted)). It has been acknowledged in the admiralty

context that gross negligence is a “point on a continuum of

probability and its presence depends on the particular

circumstances of each case.” Royal Ins. Co. of Am., 194 F.3d at

1015 (alteration omitted) (citations omitted); see also

101

Pancakes, 944 P.2d at 90 (“The element of culpability that

characterizes all negligence is in gross negligence magnified to

a high degree as compared with that present in ordinary

negligence.” (alterations omitted) (citation omitted)).

53. The Court finds and concludes that Smith/HSS and

McCrea’s conduct does not rise to the level of gross negligence.

Plaintiff has failed to put forth sufficient evidence that

Smith/HSS and McCrea acted with “utter forgetfulness” of their

duties, an entire want of care for the rights of others, or with

conscious indifference to the consequences of their actions.

See, e.g., Treco v. Bosick, 199 A.2d 752, 754 (Del. Super. Ct.

1964) (defining “conscious indifference” as “a foolhardy ‘I-

don’t-care-a-bit-what-happens’ attitude”). The Court notes, for

example, that Smith and McCrea attempted to rescue and

resuscitate Bill, hardly showing “utter forgetfulness” of their

duties, complete want of care, or a conscious indifference to

the consequences of their actions. The Court therefore

concludes that Plaintiff has failed to prove her claim for gross

negligence as against Smith/HSS and McCrea.

VIII. Claims Against PADI

54. As noted above, Plaintiff stipulated that her one

claim against PADI was that PADI was grossly negligent in

102

following EFR’s difference on compressions procedures in 2011.

Pretrial Conf. Tr. 90-91. Plaintiff claims that PADI was

grossly negligent in instituting a land-based resuscitation

protocol as training for its member instructors who would be

providing care to near drowning victims. Plaintiff maintains

that the EFR guidelines emphasized chest compressions over

rescue breaths and that PADI improperly presented this

information to its instructors. The Court finds and concludes

that PADI was neither negligent10 nor grossly negligent in this

regard.

55. Specifically, Plaintiff contends that McCrea and Smith

attended the PADI Member Forum in February 2012, at which they

received information on current EFR procedures for emergency

care. See Ex. 402 (Smith PADI records), at PADI 00141; Ex. 401

(McCrea PADI records), at PADI0055; Ex. 111 (2012 Member Update

Presentation), at 42-47. According to Plaintiff, McCrea and

10 As noted above, the Court previously granted Partial

Summary Judgment as to Plaintiff’s negligence claim against PADI. During Closing Arguments on Day 11 of trial (July 7),

Plaintiff made an oral motion pursuant to Federal Rule of Civil

Procedure 54(b) to amend the Court’s earlier ruling regarding its negligence claim against PADI. Because the Court finds PADI

was neither negligent nor grossly negligent, Plaintiff’s motion is moot and denied.

103

Smith also received EFR “Revised Materials,” including a

brochure that informed them that “[d]elaying chest compressions

for any reason is counterproductive,” and that if the rescuer

feels uncomfortable giving rescue breaths, he or she should

“RELAX!” and provide “continuous chest compressions.”11 Ex. 157

(EFR Training Material), at PADI001580-81. Plaintiff argues

that this information caused Smith not to provide rescue breaths

during Bill’s tow and caused McCrea to only provide compressions

once Bill was on board the boat. Plaintiff’s Post-Trial

Findings of Fact and Conclusions of Law, at 46. In Closing

Arguments, Plaintiff cited to testimony from Smith that he may

have been “combining” his “EFR training with” other training in

determining whether to check for a heartbeat prior to

administering rescue breaths. Smith Trial Tr. 2-91. With

respect to McCrea, Plaintiff cites to McCrea’s testimony that

EFR procedure provided that he should administer chest

11 Plaintiff cites to a PowerPoint presentation given at the

Member Forum which, in turn cites to revised EFR materials,

including Exhibit 157. See Ex. 111 (2012 Member Update

Presentation), at 44. On this basis, Plaintiff claims that the

material was provided to Smith and McCrea. The Court notes that

McCrea and Smith did not specifically testify about materials

received at the Member Forum.

104

compressions prior to giving rescue breaths. McCrea Trial Tr.

4-116, 3-86.

56. First, as noted above, the Court finds and concludes

that although changes were made to the EFR guidelines in

response to changes instituted by ILCOR and its member

organizations regarding CPR, these changes did not do away with

rescue breaths, but only changed the recommendation to providing

chest compressions prior to rescue breaths. Ex. 150, 151. More

importantly, the evidence demonstrates that EFR made clear

representations to its instructors in its Responder Newsletter

that drowning presents “[a] [s]pecial [r]esuscitation

[s]ituation” and that reference should be made to the PADI

Rescue Diver Manual or the PADI Instructor Manual for further

instruction. Ex. 151, at PADI001548. The Responder

additionally informed EFR instructors that according to the AHA

guidelines, “if you suspect possible drowning, begin with CPR

rescue breaths before chest compressions.” Id. at PADI001543.

PADI provided the same information to its members in its

Training Bulletin. Ex. 150, at PADI001857.

57. In turn, the PADI Rescue Diver Manual did not change

following the updates to the EFR guidelines and Plaintiff’s own

experts, Dr. Cianci and Weber endorsed PADI guidelines.

105

Shreeves Trial Tr. 7-27; Cianci Trial Tr. 4-55; Weber Trial Tr.

5-76. As noted above, Dr. Cianci testified that McCrea and

Smith should have followed the PADI guidelines but did not, and

Weber testified that if McCrea and Smith had followed the PADI

guidelines and protocols, she would have no issue with their

rescue attempt. Cianci Trial Tr. 4-55; Weber Trial Tr. 5-76.

Dr. Cianci and Weber’s testimony indicates that PADI guidelines

were appropriate, and given that the Responder referred EFR

members to PADI materials in the case of drowning victims, their

opinions negate Plaintiff’s claim of any negligence (i.e., gross

negligence or ordinary negligence).

58. Plaintiff claims that McCrea and Smith were confused

about the proper procedure for near-drowning victims because

they attended informational Member Forums put on by PADI in

which chest compressions were emphasized and received EFR

materials containing similar information. Plaintiff’s Post-

Trial Findings of Fact and Conclusions of Law, at 44-45.

However, even if Smith and McCrea were confused about the proper

protocol, they should not have been, given that the Responder

expressly provided that based on the AHA CPR changes, in

“possible drowning” cases, rescue breaths should be administered

before chest compressions. Ex. 151, at PADI001543.

106

59. In any event, the Court finds and concludes that any

failure on behalf of PADI with respect to the EFR modifications

was not a legal cause of Bill’s death. Indeed, the Court has

found that McCrea continued to provide CPR with chest

compressions and rescue breaths up until the boat arrived to the

mouth of the harbor (although the Court has found McCrea and

Smith should have immediately provided CPR and oxygen before

leaving for the harbor). Accordingly, Plaintiff’s argument that

McCrea did not provide rescue breaths and only provided chest

compressions as a result of the EFR guidelines fails. With

respect to any allegation that McCrea should have given rescue

breaths prior to initiating chest compressions, no witness

testified that McCrea providing thirty chest compressions prior

to giving two rescue breaths, respirations, or ventilations,

contributed to the failure to resuscitate Bill. The Court finds

there is no evidence that providing thirty chest compressions

prior to giving two rescue breaths contributed to the failure to

resuscitate Bill. As to Smith’s failure to provide rescue

breaths in the water and the allegation that this was influenced

by the EFR guidelines, the Court has found that Smith’s decision

was reasonable, given that he was approximately a minute away

from the boat, obviating Plaintiff’s argument in this regard.

107

Moreover, the Court has found that Smith and McCrea were

negligent by failing to work together to administer CPR along

with oxygen once Bill was on the boat. This negligence was not

influenced by the changes to the EFR guidelines regarding chest

compressions.

60. For all of these reasons, the Court finds and

concludes that Plaintiff has failed to prove its claims against

PADI.

IX. Comparative Fault and Counterclaim

61. “Under admiralty law, comparative negligence, although

not a complete bar to recovery, will reduce an award by the

percentage of plaintiffs’ own negligence.” Korpi v. United

States, 961 F. Supp. 1335, 1347 (N.D. Cal. 1997), aff’d, 145

F.3d 1338 (9th Cir. 1998).

62. Based on all the evidence adduced, and having observed

the demeanor of the witnesses, the Court concludes that Bill was

contributorily negligent insofar as he entered the overhead

environment of the arches at Skull Cavern, but was not

contributorily negligent with respect to the alleged loss of

buoyancy control. The Court finds that Hambrook was not

contributorily negligent as alleged by Defendants.

108

63. Specifically, the Court concludes, based on Nicolas’s

testimony that he observed Smith lead his father directly into

Skull Cavern, that Bill did not lose control of his buoyancy in

the manner claimed by Defendants. The Court concludes that

instead Bill’s ascent to the surface was caused by the hydraulic

action of the surge waters at this shallow dive site, a locally

well-known phenomenon about which Bill, Hambrook, and Nicolas

were not warned and were not prepared to encounter. As noted

above, this finding is support by Smith’s PADI Incident Report

and the Coast Guard Report and police report made right after

the incident, which said nothing about a loss of buoyancy; and

by McCrea’s testimony that Bill appeared to be in control of his

BCD and his buoyancy when he ascended to the surface the first

time and then proceeded to descend.

64. The Court further concludes that in the circumstances

of his being tumbled by 3-4 foot waves in a shallow rocky area

it is not reasonable to expect Bill to have been able to recover

his scuba regulator, given that he had no experience with diving

in surf and surge conditions or in an overhead environment,

indeed that he had very little diving experience of any kind,

and that he had only been briefly trained on this skill in a

swimming pool and in relatively calm waters. Weber Trial Tr. 5-

109

41-42 (noting that regulator recovery skill is not practiced in

whitewater because it would be dangerous to do so).

Predictably, the situation caused panic, further hindering

Bill’s ability to respond. Ex. 178 (Smith Dep. Tr. 262-63)

(testifying that Bill probably did not try to replace his

regulator because he was “overwhelmed with the senses and being

in a panic situation”); Ex. 11 (PADI Open Water Diver Manual),

at 156 (“Divers who have a problem and panic lose self control,

and sudden, unreasoned fear and instinctive inappropriate

actions replace controlled, appropriate action.”).

65. However, the Court concludes that Bill was

contributorily negligent with respect to entering the overhead

environment at Skull Cavern. As discussed in the Court’s

findings, both Hambrook and Nicolas testified that they were

informed prior to the dive that they would be entering the

arches at Skull Cavern. Bill, Hambrook, and Nicolas were PADI-

certified divers and learned in their training that they should

not enter an overhead environment unless they received specific

training teaching them how to do so. Indeed, Engel, who trained

Bill, Hambrook, and Nicolas in Calgary, testified that he taught

them the information contained in the Open Water Diving Manual,

which included an explanation of the hazards associated with

110

overhead environments as well as the need for additional

training. Ex. 180 (Engel Dep. Tr. 200); Ex. 11 (Open Water

Diving Manual), at 139. The divers also signed a PADI Statement

of Understanding acknowledging that they should “[e]ngage only

in diving activities consistent with [their] training and

experience” and that they should not “engage in cave and

technical diving unless specifically trained to do so.” Ex. 232

(Maui Dive Company Records), at 9, 17, 30; Hambrook Trial Tr. 9-

90-92.

66. Under these circumstances, the Court finds and

concludes that Bill should have realized that entering the

overhead environment at Skull Cavern could be dangerous and that

he should have considered that he was not trained to safely

enter the cavern. However, Bill could not have recognized the

specific hazards associated with the dive site given that he was

an inexperienced diver, had never dived at the site before, and

was not warned by McCrea or Smith regarding the surge and the

change in depth. The Court also acknowledges that Bill was

following Smith’s lead as the divemaster and relying on Smith’s

experience and expertise. Under these circumstances, the Court

finds that Bill was twenty percent contributorily negligent in

this case.

111

67. Finally, the Court concludes that McCrea and

Smith/HSS’s counterclaims against Hambrook alleging she delayed

the resuscitation efforts to save her husband by refusing to

follow McCrea’s orders to reboard the HSS dive boat, thereby

causing Bill’s death, are without merit. These allegations are

directly contradicted by Hambrook’s testimony that she got out

of the way as soon as she was asked to, Hambrook Trial Tr. at 8-

94-95; and by Chelsea’s testimony that her mother swung out of

the way as soon as Smith told her to, Chelsea Trial Tr. at 5-

142, 5-144. Moreover, McCrea testified that the delay in

getting Bill onto the boat because Hambrook did not get out of

the way was “approximately” five seconds. McCrea Trial Tr. 4-

121-122. Accordingly, even if there was some delay caused by

Hambrook blocking Smith and Bill’s entry to the boat, there was

insufficient evidence that this was a factor contributing to a

delay in Bill’s resuscitation.

68. The Court notes that given its finding that Bill was

only twenty percent contributorily negligent, application of

Hawaii’s contributory negligence statute, HRS § 663-31, would

not change the result in the instant case. See HRS § 663-31(a)

(noting contributory negligence bars recovery for negligence

resulting in death or injury where the contributory negligence

112

is “greater than the . . . aggregate negligence of such persons

against whom recovery is sought”).

X. Damages

A. Pre-Death Pain and Suffering

69. Plaintiff is entitled to seek survival damages for

pre-death pain and suffering under general maritime law. See

Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987) (“[F]ederal

circuit courts considering survival damages have generally

stated that pre-death pain and suffering is compensable.”),

overruling on other grounds recognized by Saavedra v. Korean Air

Lines Co., 93 F.3d 547, 554 (9th Cir. 1996); Voillat v. Red &

White Fleet, No. C 03-3016 MHP, 2004 WL 547146, at *5 (N.D. Cal.

Mar. 18, 2004) (“Plaintiffs are entitled to seek damages for

pre-death pain and suffering under a general maritime survival

action.”).

70. The Court has found that Bill was conscious of his

impending death for a period of at least 1 to 2 minutes. This

finding is supported by Dr. Cianci’s testimony on the

physiological experience of drowning. Both Chelsea and McCrea

also testified that Bill appeared panicked and was yelling for

help when he arose to the surface of the water without his

regulator in his mouth. McCrea Trial Tr. 4-105; Ex. 179 (McCrea

113

Dep. Tr. 111-12); Chelsea Trial Tr. 5-135-136. The Court also

notes that there was no evidence presented that prior to his

drowning, Bill suffered a serious injury, such as a skull

fracture, that could have indicated Bill was unconscious at this

time. See Cook v. Ross Island Sand & Gravel Co., 626 F.2d 746,

750 (9th Cir. 1980) (citing evidence that decedent had not

sustained a skull fracture to support award of pre-death pain

and suffering); see also S. Pac. Co. v. Heavingham, 236 F.2d

406, 409 (9th Cir. 1956) (“And if the jury were of the view that

he probably suffocated from the steam, they would have the right

to conclude that a man whose breath has been cut off

nevertheless would remain conscious for an appreciable period of

time.”).

71. Based on the evidence adduced, the Court concludes

that $50,000 to Hambrook as Personal Representative of the

Estate of William Joseph Savage (“the Estate”) is an appropriate

award for conscious pre-death pain and suffering. Cf. Cook, 626

F.2d at 750-52 (approving trial court’s reduction of jury award

for conscious pain and suffering in a drowning death from

$100,000 to $35,000 for a period of consciousness of two-and-a-

half-minutes); Tancredi v. Dive Makai Charters, 823 F. Supp.

778, 790 (D. Haw. 1993) (“The court finds that Tancredi did

114

experience distress, pain and suffering when he had difficulty

in breathing and died as a result of drowning. Based on the

evidence presented, the court finds that plaintiffs are entitled

to $50,000 for Tancredi’s conscious pain and suffering.”),

overruling on other grounds recognized by McClenahan, 888 F.

Supp. at 123.

B. Loss of Support

72. As discussed in the Court’s Order Regarding Motions in

Limine, Plaintiff has elected to seek loss of support damages as

a wrongful death beneficiary as opposed to lost future earnings

“on behalf of her husband’s Estate.” Order Regarding Motions in

Limine, at 14 (quoting Pl.’s Opp. to Smith and HSS MIL No. 1, at

5, ECF No. 266). Plaintiff is entitled to loss of support

damages as a wrongful death beneficiary. See In re Air Crash

Off Point Mugu, California, on Jan. 30, 2000, 145 F. Supp. 2d

1156, 1166 (N.D. Cal. 2001) (noting pecuniary damages available

under maritime law include loss of support); Voillat, 2004 WL

547146, at *6 (“As wrongful death beneficiaries, plaintiffs are

entitled to damages for loss of support.”). Loss of support

damages include “the financial contributions that the decedent

would have made to his dependents had he lived.” Sea-Land

Servs., Inc. v. Gaudet, 414 U.S. 573, 584-85 (1974), superseded

115

by statute on other grounds as stated in Miles v. Apex Marine

Corp., 498 U.S. 19 (1990); see also Voillat, 2004 WL 547146, at

*6 (noting “the support plaintiff[] would receive as a result of

[the decedent’s] death would . . . come from his future

earnings”); Saavedra, 93 F.3d at 554-55 (affirming loss of

support award in maritime action despite challenge to the method

in which expert economist calculated the decedent’s future

earnings).

73. “Although the past earnings of a decedent are clearly

relevant to the probable value of the support lost by the

beneficiaries on account of the death, such earnings are not

dispositive in evaluating the amount of the damages.” 1 Stuart

M. Speiser & James E. Rooks, Jr., Recovery for Wrongful Death

(2012) § 6:16 (4th ed. 2005). Accordingly, “[t]he proper

standard for recovery in a wrongful death action is the

decedent’s future earning capacity, not actual earning history.”

Id.

74. Defendants’ forensic accounting expert, Garret Hoe,

provided a report and testified regarding Bill’s lost earnings.

Ex. 253 (Hoe Report). However, Hoe’s calculations relied solely

on Bill’s past earning history and did not consider the evidence

regarding Bill’s capacity to earn between 60,000 and 75,000 in

116

Canadian dollars (as testified by Wilson) or 64,416 in Canadian

dollars (as testified by Dr. Male) as he began working full time

as a foreman-supervisor for a landscaping company or in his

business. Accordingly, the Court finds Hoe’s calculations to be

unreasonable.

75. Plaintiff’s economic expert, Dr. Male, provided an

analysis of “Income and Support Loss.” Ex. 65 (Male Expert

Report). The Court has numerous problems with Dr. Male’s

determination of loss of support, including matters such as

utilizing a poverty threshold in determining personal

maintenance expenditures12 and failing to include any

consideration of Hambrook’s substantial earnings, which exceeded

180,000 Canadian dollars per year, or the fact that the family

was quite well off and took numerous trips. The Court is also

troubled by Dr. Male’s use of a barebones personal maintenance

deduction based on a survival claim, as opposed to a personal

consumption deduction for a loss of support claim.

76. The Court has spent substantial time attempting to

resolve these concerns, and has concluded that the only

12 The Court notes that in his testimony, Dr. Male alluded

to “the literature” as finding this to be appropriate. Male Trial Tr. 6-140.

117

reasonable means of doing so is to deduct a flat amount from Dr.

Male’s total of 475,425 U.S. dollars for loss of support. The

Court finds that a deduction of 50,000 U.S. dollars is

appropriate. Accordingly, the Court concludes that Plaintiff

should be awarded a total of 425,425 U.S. dollars for loss of

support. Plaintiff has not provided the Court with any evidence

or suggestions as to how this amount should be divided between

certain members of the family, and therefore the Court will make

the award to Hambrook, Chelsea, and Nicolas jointly.

C. Loss of Services

77. Recovery for loss of services may include “[s]ervices

the decedent performed at home or for his spouse.” Gaudet, 414

U.S. at 585. “A spouse is entitled to the pecuniary value of

the services which the deceased spouse might reasonably have

performed . . . .” Speiser & Rooks, supra § 6:40. Notably,

contrary to Defendants’ contention, “it is not necessary to

actually hire someone to perform [such] services, after the

decedent’s death, to recover for household services” or to have

evidence of replacement costs incurred. Id. (citing R.I. Gen.

Laws § 10-7-1.1 (“The fair value of homemaker services should

not be limited to moneys actually expended to replace the

services usually provided by the homemaker.”); Reid v. State

118

Through Dep’t of Transp. & Dev., 637 So. 2d 618, 628 (La. Ct.

App. 1994), (“At the outset we note that a claim for lost

services is not defeated by absence of proof of actual out-of-

pocket replacement costs.”), writ denied, 642 So. 2d 198 (La.

Aug. 16, 1994)).

78. Defendants’ expert concluded there would be no loss of

services based on the absence of evidence of actual costs, such

as receipts or cancelled checks, incurred after Bill’s death.

Ex. 253 (Hoe Report), at 7. However, as noted above, such

evidence is not required to recover for loss of household

services.

79. Bill’s relatively low earnings for the years prior to

his death were explained by Dr. Male as a result of being the

primary caregiver for his young children; with Hambrook earning

in the neighborhood of 180,000 Canadian dollars a year as a car

rental executive. Dr. Male now concludes that with Chelsea and

Nicolas maturing and generally being away at school, his time

devoted to household work would be reduced as Bill would be able

to devote himself full time to his business, in a related field,

or as a foreman-supervisor of a landscaping company. Indeed,

Dr. Male concludes that in 2012, the year of Bill’s tragic

death, his earnings would have jumped dramatically to 64,416

119

annualized Canadian dollars (which were reduced to 48,312

Canadian dollars since he died on April 11, 2012). Ex. 65 (Male

Report), at 6.

80. The Court notes that Dr. Male’s report, in computing

household work for past losses, arrived at a total average

number of 27 hours per week for household services; whereas for

future losses he determined 19.88 total average hours per week

would be appropriate.

81. In his testimony before the Court, Dr. Male explained

as follows with respect to past losses:

I chose a midpoint between 35 [the hours reported

by Hambrook] and the average of 20. So I assumed

that four-year period he would have averaged 27

hours a week as he gradually began to spend more

time on his business and less time at home.

Male Trial Tr. 6-110.

82. Dr. Male explained as follows with respect to future

losses:

If you turn to the future loss page, the

difference starts at the top. Instead of --

instead of assuming the 27-hour weekly production

rate, I just assumed the average rate of 19.88.

So, I assumed that by this time Mr. Savage would

have been either working full-time or devoting

most of his full-time effort to -- to his

business so that he would -- his ability to

produce household services at home would be

reduced to the average.

120

Id. 6-113. Dr. Male represented that 19.88 was a statistical

average. Id. 6-109.

83. Again, the Court notes that with respect to his

calculation of future losses (which began in the year 2016), Dr.

Male assumed that “by this time Mr. Savage would have been

either working full-time or devoting most of his full-time

effort . . . to his business . . . .” Id. Nevertheless, his

calculation of loss of income and support provides for Bill

earning an annualized incoming of 64,416 Canadian dollars for

the year 2012 and including the years 2013, 2014, and 2015;

thus, contrary to his aforesaid testimony, assuming that Bill

commenced full time devotion to his work outside of the home in

April of 2012.

84. The Court further concludes that with Bill commencing

full time devotion to his work outside of the home in April of

2012, the hours for household work projected by Hambrook and Dr.

Male from that time and for the balance of his “healthy life

expectancy” (which Dr. Male set at 23.63 years, Ex. 65 (Male

Report), at 6)) are unrealistic and should be reduced. The

Court further finds that with the necessary investment of time

that Bill would have to expend in expanding his current business

or in working full time as a foreman-supervisor in the

121

landscaping field, as well as entering into his 50s, that it is

improbable that he would achieve the average number of weekly

hours of household services relied upon by Dr. Male.

85. Under the circumstances the Court is faced with, the

Court finds an appropriate means to resolve these concerns is to

reduce Dr. Male’s calculation of loss of household services (of

294,973 U.S. dollars) by a flat rate deduction of 50,000 U.S.

dollars. Accordingly, the Court concludes that Plaintiff should

be awarded a total of 244,973 U.S. dollars for loss of services.

Plaintiff has not provided the Court with any evidence or

suggestions as to how this amount should be divided between

certain members of the family, and therefore the Court will make

the award to Hambrook, Chelsea, and Nicolas jointly.

D. Loss of Society

86. As discussed in the Court’s Order Regarding Motions in

Limine, under Sutton v. Earles, Plaintiff can recover for loss

of society. 26 F.3d 903, 915-17 (9th Cir. 1994); see also Chan

v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1407 (9th Cir. 1994)

(“We have also held that the beneficiaries of passengers killed

or injured on state territorial waters can recover [loss of

society] damages.” (citing Sutton, 26 F.3d 903)); MacLay v. M/V

SAHARA, 926 F. Supp. 2d 1209, 1220 (W.D. Wash. 2013) (noting

122

that in the Ninth Circuit, “beneficiaries of non-seamen in

territorial waters may . . . recover for loss of society under

general maritime law”). Loss of society covers “a broad range

of mutual benefits each family member receives from the others’

continued existence, including love, affection, care, attention,

companionship, comfort, and protection.” Gaudet, 414 U.S. at

585.

87. Given the evidence adduced regarding the relationship

between Bill and his family, the Court concludes that $10,000

per year for Hambrook and $10,000 a year each for Chelsea and

Nicolas, multiplied by Bill’s statistical life expectancy of

32.47 years, Male Trial Tr. 6-114, (totaling $324,700 each) is

an appropriate award for loss of society. Cf. Sutton, 26 F.3d

at 917 (discussing award of $10,000 per year to beneficiaries

for loss of society).13

13 The Court notes that in Sutton v. Earles, the Ninth

Circuit determined that “the district court erred in using the life expectancies of the decedents rather than those of the

surviving parents” to calculate loss of society damages, noting that “[i]t simply makes no sense to calculate the loss to the parents, who presumably have shorter remaining life expectancies

at any given time than their children, by the child’s life expectancy.” 26 F.3d at 918-19. With respect to Nicolas and Chelsea, use of Bill’s life expectancy is appropriate as he presumably would have a shorter life expectancy than his

children. Hambrook was 50 at the time of Bill’s death, while (continued . . . )

123

E. Emotional Distress

88. A claim for negligent infliction of emotional distress

(“NIED”) is “cognizable under general maritime law.” Fawkner v.

Atlantis Submarines, Inc., 135 F. Supp. 2d 1127, 1134 (D. Haw.

2001). As recognized by the Ninth Circuit, the issue here “is

not the emotional grief caused by losing a love one,” but

“[i]nstead . . . the psychic injury that comes from witnessing

another being seriously injured or killed.” Chan, 39 F.3d at

1408.

89. The Ninth Circuit has not decided which of “three main

theories limiting recovery of damages for emotional distress”

applies in the admiralty context. Id.; see also Stacy v.

Rederiet Otto Danielsen, A.S., 609 F.3d 1033, 1035 (9th Cir.

2010) (considering a claim under the “zone of danger” test but

not foreclosing the possibility that other tests may apply).

( . . . continued)

Bill was 49. The Court is also aware that women tend to have

higher life expectancies than men. See, e.g., Statistics

Canada: Health-adjusted life expectancy, by sex,

http://www.statcan.gc.ca/tables-tableaux/sum som/ l01/

cst01/hlth67-eng.htm (Mar. 24, 2012). Thus, the Court finds

Bill’s life expectancy as an appropriate means to calculate Hambrook’s loss of society damages.

124

Here, the Court finds and concludes that Plaintiff can recover

for emotional distress under the “bystander proximity” test.

90. Pursuant to the “‘bystander proximity’ or ‘relative

bystander’ rule,” a plaintiff can recover if he or she “(1) is

physically near the scene of the accident; (2) personally

observes the accident; and (3) is closely related to the

victim.” Fawkner, 135 F. Supp. 2d at 1134 (quoting Chan, 39

F.3d at 1409). The Court heard testimony that Hambrook,

Nicolas, and Chelsea were near the scene of Bill’s drowning and

personally observed the circumstances leading up to his death.

Hambrook was Bill’s wife, and Chelsea and Nicolas his children,

thus they are closely related.

91. The Court finds and concludes that based on the

testimony and demeanor of Hambrook, Chelsea, and Nicolas, all

three suffered emotional distress as result of witnessing the

events leading up to Bill’s fatality. Accordingly, Plaintiff

may recover for her claim of emotional distress.

92. The Court concludes that $50,000 each is an

appropriate award to Hambrook, Chelsea, and Nicolas for their

emotional distress in witnessing Bill’s death firsthand.

125

F. Hedonic Damages

93. The Court has found that Plaintiff may recover hedonic

damages under Hawaii law, HRS § 663-8.5(a), to supplement her

right of recovery under general maritime law. “Hedonic damages

are damages ‘for the loss of enjoyment of life, or for the value

of life itself, as measured separately from the economic

productive value that an injured or deceased person would have

had.’” Montalvo v. Lapez, 884 P.2d 345, 347 n.2 (Haw. 1994)

(quoting Black’s Law Dictionary 391 (6th ed. 1990)); see also

HRS § 663-8.5(a) (providing that “loss of enjoyment of life”

damages are available). With respect to hedonic damages, the

Hawaii Supreme Court has held:

The measurement of the joy of life is intangible.

A jury may draw upon its own life experiences in

attempting to put a monetary figure on the

pleasure of living. It is “a uniquely human endeavor . . . requiring the trier of fact to

draw upon the virtually unlimited factors unique

to us as human beings.” Testimony of an economist would not aid the jury in making such

measurements because an economist is no more

expert at valuing the pleasure of life than the

average juror.

Montalvo, 884 P.2d at 366 (citations omitted).

94. “Many jurisdictions permit recovery for hedonic loss,

but only as one of the factors that make up the general damages

award for pain and suffering.” Speiser & Rooks, supra § 6:44.

126

The “majority of states” also disallow “[p]ostmortem hedonic

damages.” Id. § 6:45. In Connecticut, one of the states that

does allows post-mortem hedonic damages, the state’s Supreme

Court noted that possible damages available included

“compensation for the destruction of [the decedent’s] capacity

to carry on and enjoy life’s activities in a way she would have

done had she lived.” Katsetos v. Nolan, 368 A.2d 172, 183

(Conn. 1976).

95. In Hawaii, as in Connecticut, “a decedent’s recovery

for loss of enjoyment of life is not limited by death” and may

be considered separately from pain and suffering. Polm v. Dep’t

of Human Servs., No. CAAP-13-0004020, 2014 WL 7390879, at *20-21

(Haw. App. Ct. Dec. 30, 2014). Thus, hedonic damages are

available in the instant case.

96. Given the evidence adduced regarding Bill’s enjoyment

of life while he was alive, and his cherished relationship with

his family, the Court finds that an award of $900,000 in hedonic

damages is appropriate to be awarded to Hambrook as Personal

Representative of the Estate of William Joseph Savage. Cf.

Sherrod v. Berry, 629 F. Supp. 159, 160 (N.D. Ill. 1985) (jury

award of $850,000 in hedonic damages for a wrongful death action

under 42 U.S.C. § 1983), rev’d on other grounds, 856 F.2d 802

127

(7th Cir. 1988); Polm, 2014 WL 7390879, at *3, 20-21 (discussing

the Hawaii Intermediate Court of Appeals’ affirmance of an award

of $250,000 for pain and suffering and loss of enjoyment of life

to the decedent, who was 14 months old at the time of death).14

G. Punitive Damages

97. “In admiralty law, punitive damages ‘may be imposed

for conduct which manifests reckless or callous disregard for

the rights of others or for conduct which shows gross negligence

or actual malice or criminal indifference.’” Kahumoku v. Titan

Mar., LLC, 486 F. Supp. 2d 1144, 1152-53 (D. Haw. 2007) (quoting

Churchill v. F/V Fjord, 892 F.2d 763, 772 (9th Cir. 1998)).

Given the Courts findings and conclusions regarding gross

negligence, punitive damages are unwarranted.

14 The Court notes that in Polm, the trial judge limited the

award of loss of enjoyment of life based on the decedent’s “checkered and tumultuous past,” including his mother’s methadone addiction and father’s “intermittent fits of anger or violence”; the fact that “he is likely to have had social and emotional challenges in the future”; and the likelihood that the decedent would not have been provided “a stable environment in which to flourish.” Polm v. Dep’t of Human Servs., Civ. No. 11-1-0548-03 GWBC, at 39-40 (Cir. Ct. First Cir. of Hawaii filed

Aug. 7 2013) (Findings of Fact and Conclusions of Law and

Order). The court found that the decedent’s “quality of life would not be optimal, which significantly reduces the value of

his loss of enjoyment of life.” Id. at 40. These (somewhat questionable) limitations are clearly not present in the instant

case.

128

H. Prejudgment Interest

98. “In admiralty law, the district court has discretion

to award prejudgment interest to accomplish the just restitution

of injured parties.” Columbia Brick Works, Inc. v. Royal Ins.

Co. of America, 768 F.2d 1066, 1068 (9th Cir. 1985). “The

district court also has broad discretion to determine when

prejudgment interest commences and what rate of interest to

apply.” Id.

99. Plaintiff does not request the use of a specific

interest rate but requests that the interest be applied from the

date of the original Complaint. This district court has noted

that to calculate prejudgment interest under admiralty law, “the

Ninth Circuit has adopted the standards set for post-judgment

interest set forth in 28 U.S.C. § 1961(a)[15], unless the trial

15 28 U.S.C. § 1961(a) provides in relevant part,

Interest shall be allowed on any money judgment

in a civil case recovered in a district court

. . . . Such interest shall be calculated from

the date of the entry of the judgment, at a rate

equal to the weekly average 1–year constant maturity Treasury yield, as published by the

Board of Governors of the Federal Reserve System,

for the calendar week preceding the date of

judgment.

(continued . . . )

129

judge finds, on substantial evidence, that the equities of a

particular case require a different rate.” The Pasha Grp. v.

Harbour Forwarding Co., No. CIV. 11-00358 DAE-RLP, 2012 WL

779342, at *8 (D. Haw. Feb. 16, 2012), findings and

recommendation adopted sub nom. Pasha Grp. v. Harbour Forwarding

Co., No. CIV. 11-00358-DAE-RLP, 2012 WL 777301 (D. Haw. Mar. 8,

2012).

100. The Court finds that the rate established in 28 U.S.C.

§ 1961(a) is appropriate as Plaintiff has not argued otherwise.

The weekly average 1–year constant maturity Treasury yield for

the week prior to March 14, 2014 (March 7, 2014) was 0.12%. The

Court applies this rate for a two year and five month period

(between March 2014 and August 2016), i.e., 2.42 years. The

Court concludes that under the circumstances, Plaintiff should

be awarded prejudgment interest pursuant to this calculation, as

provided below.

( . . . continued)

Upon the Court’s independent research, from March 2014 to August 2016, this interest rate has fluctuated between 0.09%

to 0.71%.

130

XI. Calculation of Damages

101. The Court provides the following damages calculations

for Hambrook as Personal Representative of the Estate; jointly

to Hambrook, individually, and Hambrook as Personal

Representative for the benefit of Chelsea Savage and Nicolas

Savage; for Hambrook, individually; for Hambrook as Personal

Representative for the benefit of Chelsea Savage; and for

Hambrook as Personal Representative for the benefit of Nicolas

Savage.

Damages to the Estate Amount

Conscious Pre-Death Pain and

Suffering

$50,000

Hedonic Damages $900,000

Total less 20% contributory

negligence

$760,000

Prejudgment Interest16 $2,207.04

Total Award $762,207.04

16 [Total less 20% contributory negligence] x .12% x 2.42

years.

131

Combined Damages to Hambrook Individually and Hambrook as Personal Representative of

Chelsea and Nicolas

Amount

Loss of Support $425,425

Loss of Services $244,973

Total less 20% contributory

negligence

$536,318.40

Prejudgment Interest $1,557.47

Total Award $537,875.87

Damages to Hambrook, Individually

Amount

Loss of Society

$324,700

Emotional Distress $50,000

Total less 20% contributory

negligence

$299,760

Prejudgment Interest $870.50

Total Award $300,630.50

Damages to Hambrook as Personal Representative for

the Benefit of Chelsea Savage

Amount

Loss of Society

$324,700

Emotional Distress $50,000

Total less 20% contributory

negligence

$299,760

Prejudgment Interest $870.50

Total Award $300,630.50

132

Damages to Hambrook as Personal Representative for

the Benefit of Nicolas Savage

Amount

Loss of Society

$324,700

Emotional Distress $50,000

Total less 20% contributory

negligence

$299,760

Prejudgment Interest $870.50

Total Award $300,630.50

Total Damages $2,201,974.41

XII. Joint and Several Liability

102. “For more than a century, general maritime law has held joint tortfeasors jointly and severally liable for all of

the plaintiff’s damages suffered at their hand.” Coats v. Penrod

Drilling Corp., 61 F.3d 1113, 1116 (5th Cir. 1995). Where there is

joint and several liability, “the risk of noncollection is borne

by the defendants.” Id. Accordingly, Plaintiff “can collect his

entire judgment from a single defendant, leaving to the

defendants allocation of fault among themselves.” Id.

103. Defendants in this case have not filed cross-claims

against each other. Having found that Smith, HSS, and McCrea are

all legally responsible for the compensatory damages set for

above, it is unnecessary for the Court to allocate fault between

133

them. Judgment shall enter against these defendants, jointly,

and severally, for the damages listed above.

104. The Court notes that even if Hawaii law applied with

respect to joint and several liability, it would not change the

Court’s conclusion. Under Hawaii law, joint and several

liability applies “[f]or the recovery of economic damages

against joint tortfeasors in actions involving injury or death

to person[s].” HRS § 663-10.9(1). For the recovery of

noneconomic damages, joint and several liability applies in

cases “involving injury or death to persons against those

tortfeasors whose individual degree of negligence is found to be

twenty-five percent or more.” Id. The Court finds that each of

the relevant defendants (that is, excluding PADI) were at least

twenty-five percent negligent in the instant case.

DECISION

And now, following the conclusion of a bench trial in

this matter, and in accordance with the foregoing findings of

facts and conclusions of law, it is hereby ordered that judgment

shall enter in favor of Plaintiff and jointly and severally

against Defendants Smith, HSS, and McCrea in the above matter in

the amount of $762,207.04 to Hambrook as Personal Representative

of the Estate (for pre-death pain and suffering and hedonic

134

damages); $537,875.87 jointly to Hambrook, individually, and

Hambrook as Personal Representative for the benefit of Chelsea

Savage and Nicolas Savage (for loss of support and loss of

services); $300,630.50 for Hambrook, individually (for loss of

society and emotional distress); $300,630.50 for Hambrook as

Personal Representative for the benefit of Chelsea Savage (for

loss of society and emotional distress); and $300,630.50 for

Hambrook as Personal Representative for the benefit of Nicolas

Savage (for loss of society and emotional distress). Because

the Court finds and concludes that Plaintiff was not

contributorily negligent, judgment in favor of Plaintiff is also

appropriate with respect to the remaining counterclaims.

Finally, the Court has determined that Plaintiff failed to prove

her claims against PADI. Accordingly, judgment in favor of PADI

is appropriate for Plaintiff’s claims against PADI.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, August 17, 2016.

Hambrook v. Smith et al., Civ. No. 14-00132 ACK-KJM, Findings of

Fact, Conclusions of Law, and Decision.

________________________________Alan C. KaySr. United States District Judge